Daily Archives: July 18, 2013

No sex on 1st night, No sex latr, Still husband looses at HC. why it’s key 2 prove wife’s actions!!

WIFE REFUSES SEX FIRST NIGHT! There is NO cohabitation the next 12 days as well

The wife is complaining of leg pain, stomach pain, what not and the wife is taken here there everywhere !!

Wife returns to her parental home very soon and refuses to return

Wife’s side file dowry complaint and so all police etc etc fo

Husband applies for Divorce on grounds of cruelty

Husband gets divorce family court.

11 YEARS LATR HC SETS ASIDE DIVORCE [wife seeks restitution ] !! and asks the husband and wife to go forth and …… as the HC feels that the husband’s case is not proven well !!

How do you expect people who have gone six times to police, many times to family court, many times to HC to patch up and live after 11 years ?? SAD SAD state of matrimony in India !!


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2012

CORAM

The Hon’ble Mr. Justice K.MOHAN RAM
and
The Hon’ble Mr. Justice G.M.AKBAR ALI

C.M.A.Nos.902, 903 and 2407 of 2010
and M.P.No.2 of 2010

J.Anitha.. Appellant in CMA Nos.902 & 903 / 2010
& Respondent in CMA No.2407 of 2010

Vs.

J.Prakash.. Respondent in CMA Nos.902 & 903 / 2010
& Appellant in CMA No.2407 / 2010

PRAYER IN CMA Nos.902 & 903 / 2010 .:Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act against the order of the learned Principal Judge, Family Court, Chennai, dated 21.12.2009 in O.P.Nos.1985 of 2001, 2268 of 2007.

PRAYER IN CMA No.2407 / 2010 .:Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act against the judgment and decree dated 21.12.2009 on the file of the Principal Family Court at Chennai in so far it is against the appellant in not granting the Dissolution of Marriage on the grounds of Nullity and Mental Disorder.

For Appellant in CMA Nos.902 & 903 / 2010 &
For Respondent in CMA No.2407 / 2010: Mr. V.Rangarajan
For Respondent in CMA No.902 & 903 / 2010 &
For Appellant in CMA No.2407 of 2407 / 2010: Mr. K.P.Gopalakrishnan


C O M M O N J U D G M E N T

(Judgment of the Court was delivered by K.MOHAN RAM, J.)

CMA Nos.902and 903 of 2010 have been filed by the wife against the judgment and decree passed in O.P.No.1985 of 2002 and O.P.No.2268 of 2007 on the file of the Principal Family Court, Chennai, respectively. CMA No.2407 of 2010 has been filed by the husband against the judgment and decree passed in O.P.No.1985 of 2002 as far as disallowing of the prayer for divorce on the ground of mental disorder of the wife. 2. In these appeals, for the sake of convenience, the husband is referred to as the appellant and the wife is referred to as the respondent.

  1. The case of the appellant / husband before the Court below is as follows:-

a. The engagement between the appellant and the respondent was held on 02.07.2001. The appellant was not permitted to interact with the respondent before the marriage and he was not even allowed to visit the respondents house. The marriage between the appellant and the respondent was solemnized as per Hindu Rites and Customs on 05.09.2001 at Chennai. During the first night also, there was no change in the attitude of the respondent and she behaved inappropriately without any enthusiasm. She behaved very strangely and also childishly and did not allow the appellant even to touch her, leave alone entertaining the appellant to have sex and she appeared to be frightened and agitated. She was restless and impatient and the marriage was not consummated not only on the first night but also on the subsequent few days till 17.09.2001, when both of them were together.

  1. On the very first night of the marriage, the respondent informed the appellant that her marriage was performed against her will and consent and that she was not interested in marrying the appellant. From 06.09.2001, the respondent was only thinking of going back to her parents house and was consistently mentioning the same to the appellant. On 07.09.2001, she complained of leg pain and the appellants father took her to Dr.M.Subramaniam, MS., Ortho., on 11.09.2001 she complained of eye pain and hence she was taken by the appellant to Dr.Radhika, who after examining her, wanted her to be brought again the next day. The next day, though she left for the Doctors clinic along with the appellants father, she insisted on going to her parents house, at first, but upon reaching her parents house, she changed her mind and refused to go to the Doctor. She removed her Thali chain openly and refused to leave her parent’s house which action was fully supported by her parents. On 14.09.2001 the respondent and her parents visited the appellants grand fathers residence and wanted to reconcile the issue. On 15.09.2001, the respondent was taken to a psychiatrist viz., Dr.Mohanraj by her parents and the appellants grand father was also present at that time. After examining her, the Doctor felt that she was suffering from severe anxiety and the counseling was fixed for 20.09.2001. In the afternoon on 17.09.2001, the respondent complained of severe stomach pain, so she was taken to Dr.Radha Madhavan by the appellants mother. Though after taking medicines she was having some relief, she insisted on going to her parents house and she was found restless. The appellant felt that the respondents family is overtly possessive about her and hence he allowed the respondent to go to her parent’s house on the night of 17.09.2001. On the same night, i.e., on 17.09.2001, the respondents mother called the appellant and his parents over phone and informed that the respondent was having her periods and hence would return only on 20.09.2001.
  2. It is the further case of the appellant that on 20.09.2001, at around 11.00 am, the respondent, her parents and sister barged into the appellants residence and behaved in a very indecent and inappropriate manner and they shouted at the top of their voice using filthy language, which caused severe embarrassment to the appellants family members as this behaviour was witnessed by their neighbours and passerby. Threatening the appellant with police action stating that they will file a police complaint alleging cruelty and dowry harassment, after four hours, they all left carrying with them the articles of the respondent like cloths, silver ware, box containing jewels etc., without the knowledge and consent of the appellant and his parents in a stealthy manner. At that point of time, the respondent removed her Thali twice and shouted that it was not necessary and the respondent had since then not returned. No dowry was either demanded or obtained. Subsequently, the respondents parents have been on a defamatory campaign approached all sorts of people with false stories against the appellant and his parents.

  3. On 21.11.2001 repeated phone calls were received by the appellant and his parents to the effect that representatives of a women’s association and her parents would visit the appellant at 04.00 pm. Hearing this, the appellants father approached Abiramapuram Police Station at 12.00 noon. However, they did not come to the appellants residence.

  4. On 24.11.2001 the appellants mother lodged a police complaint before All Women Police Station, Adyar, and the same was registered in the Social Service Register bearing No.1169/CSR/W-2/PS 2001. On 25.11.2001, the parents of the respondent also approached the same police Station and filed a complaint against the appellant and his parents, which was taken on file as CSR No.1172/CSR/W2/PS/2001. The appellant was under the reasonable apprehension that the complaint contains total falsehood, including allegations of cruelty and dowry harassment. On 26.11.2001 the respondent sent a letter to the appellant making false allegations as though the mother of the appellant demanded Rs.3 lakhs. The Police Authorities conducted counselling between the two families and around six sittings took place and as there was no positive progress, the appellant has been forced to approach the Family Court.

  5. The respondent has been suffering from such mental disorder and to such an extent that the appellant cannot reasonably be expected to live with the respondent and the marriage is liable to be dissolved on the ground of mental disorder. The act of the respondent removing her Thali on many occasions, the acts, deeds and attitude and false police complaints by the respondent, from the day one of the marriage, has caused great mental strain, agony and cruelty to the appellant.

  6. The respondent was already engaged to one V.Ramachandran and after the parents of the said Ramachandran found out that the respondent was of unusual character and mentally abnormal cancelled the marriage, but this fact was not informed either to the appellant or to his parents. This is nothing but a fraud played by the respondent and her parents concealing material facts concerning the respondent. The vessels given by the respondent bear the initials of the said V.Ramachandran. Had this fact been informed to the appellant before the marriage, the appellant would not have consented for the marriage, therefore, the appellant sought for a decree for dissolution of marriage under Sections 12 (1) (C) or 13 (1) (ia) and 13(1) (iii) of the Hindu Marriages Act, 1955.

  7. The respondent / wife contested the petition by filing a detailed counter statement inter-alia contending as follows:-

a. The entire allegations in the petition are denied and the appellant is put to strict proof of the same. The respondent is a Commerce Graduate from Meenakshi College for Women in Chennai. She had been an outstanding student in all her college days and she possessed of Proficiency Certificate and Certificate of Merits for Scholastic Excellency. She joined her M.Com., course in SIET college for Women and she discontinued the same since her parents wanted her to get married. Pursuant to an advertisement published in the English Daily The Hindu dated 17.06.2001, the respondent’s parents visited the appellant’s parents at their residence and exchanged the horoscopes. On the very same day, the respondents parents had informed the appellants parents that the respondent was earlier to be engaged to another Groom and the alliance was stopped as the groom wanted to go to USA and the respondent’s parents were not inclined to send the respondent abroad. The letter of mutual understanding between the respondents family and the earlier groom was shown to the appellant’s family.

  1. There was no attempt to suppress any fact as alleged by the appellant. Thereafter, the engagement took place on 02.07.2001 at the residence of the appellant and a pooja was performed and some silver and stainless steel gift items were presented to the appellant by the respondent’s family and the respondent was also present in the engagement and she was asked to sing few songs and she sang the same along with her sister. The marriage was performed on 05.09.2001. During the period of two months from the date of engagement to the date of marriage, the appellant’s family had visited the respondent’s family on several occasion and the appellant had occasions to personally meet and talk to the respondent. Therefore it is not correct to state that the appellant was not allowed to meet the respondent. When both the families went for purchasing the wedding dresses, the respondent had accompanied them and as such the parents of the appellant had an occasion to assess the respondent attitude and mental status. The appellant had also come to the respondents house to see the wedding dresses and on such occasion also, the appellant was interacting with the respondent.
  • At the time of marriage, the appellant was presented with gold chain and a costly diamond ring along with the bracelet. The respondent was actively participating in all the events. On the very same night of the marriage, the nuptials were arranged at the house of the appellant. As any other normal girl, the respondent had the initial inhibitions and she was also shy and reluctant to interact with the appellant freely. The new atmosphere and being brought up in an orthodox family had made the respondent have her inhibitions initially. However, she had not prevented the appellant even to touching her as alleged. They were freely discussing with each other and tried to understand each other and the marriage was very much consummated. Both of them went to cinema, temple and beach and their life was perfectly normal, but she was unable to understand the appellants behaviour as he used to get wild if the respondent talked about her parents or wanted to call up them or to talk to them by phone. The respondent was effectively prevented from interacting with her parents. It is not correct to state that the marriage was performed against her wishes. The marriage was performed only with her full consent and willingness.

  • The next day both of them went to the marriage hall and the appellant was happily chatting with all the guests who were yet to go back and had his breakfast and lunch in the marriage hall itself and there was no complaint whatsoever from the appellant. The respondent was taken to Doctor since she complained of pain on her leg as she was standing in the reception whole of the previous evening. Since she was not having proper sleep for about two to three days her eyes were watering and a little reddish and she was again taken to the eye specialist. On 6th and 11th September, the respondents parents invited them to their house as some of their elderly relatives have come there and wanted to see the couple, but the appellant virtually refused to go to the respondent’s house. On 09.09.2001 the respondent’s father came to the appellant’s house and personally invited the appellant to come along with the respondent and his parents to their house as some of the elders of the family wanted to meet them and have lunch with them. At that time, the appellant’s mother told the respondent’s father that coming from a financially sound family he could be generous enough to spare a sum of Rs.3 lakhs in order to enable them to buy a flat which is being used by them as a rented portion. The said demand came to the respondent’s father as a bolt from the blue as the respondent’s father did not expect this. The appellant’s mother shouted at the respondents father and told him that her son was not a person who will merely participate in lunch meetings and they also know how to get their demand complied with and thereafter the respondent’s father left the place. The respondent told her mother-in-law that it is not fair on her part to demand Rs.3 lakhs for the purchase of a flat and for that the appellants mother warned her not to argue with her.

  • On 11.09.2001 the respondent was taken to an eye Doctor. The respondent requested the appellant to take her to her parent’s house at least for about an hour, but the appellant flatly refused, which caused great pain to her. The next day the respondent expressed her disappointment over the appellant’s behaviour to her father-in-law and her father-in-law took her to her parents house, where there was a dialogue between the appellant’s father and the respondent’s parents and the respondent’s parents also expressed their unhappiness over the appellants behaviour in not visiting their house despite being invited by them. There was only an argument and there was no removal of Thali or any other issues as stated by the appellant in the petition.

  • On 14.09.2001 the respondent, her parents and her sister went to the house of the appellants grand father for reconciliation as he happens to be a senior member of the family. Only in the light of the advise of the grand father of the appellant, the respondent went back to the matrimonial home and was there until 17.09.2001 on which day she was sent along with the maid to her appellant’s house. The respondent never spoke incoherently or behaved abnormally as alleged by the appellant.

  • The appellant and his family members have come out with a new charge that the appellant is mentally ill. The respondent’s father asked them how they can make such an allegation and they wanted her to be taken to a psychiatrist to be checked up and that was the reason why she was taken to a psychiatrist Doctor-Mohanraj. As the respondent has no previous history of mental illness of any kind and after examination the Doctor informed the appellant that he should take care of the respondent and allow her to settle in the new atmosphere without disturbing her or threatening her in any manner which caused anxiety to her. Suppressing these facts, the appellant had come out with false allegations.

  • On 17.09.2001, as the respondent suffered severe stomach pain, she was taken to Dr.Radha Madhavan by her mother-in-law. The respondent suffered with the stomach pain because of her monthly periods and as she was not able to bear the increasing pain, she was taken to her parent’s house with the permission of her in-laws. After reaching home, the respondents mother informed the appellant as well as his mother that the respondent was having her monthly periods she will be sent back in two days time.

  • The respondent, as promised by her mother, went to the house of the appellant with her younger sister and her parents on 20.09.2001. When the door was knocked the respondents mother-in-law shouted opened the door with an unpleasant expression. The respondent’s mother-in-law started shouting at the respondent not to go inside and the stay in the hall itself and the appellant’s mother abused the respondent’s parents and scolded them badly. She said that they are not happy with the respondent and they wanted to take her to a lady psychiatrist for further checkup. The respondents parents told her that unless there is reasonable cause, there is no need for consulting a psychiatrist. The appellants father informed that they are not interested in keeping the respondent with them until she agreed to come for a consultation to a lady psychiatrist, which made the respondent to cry and felt harassed. The entire discussion ended up in the appellant’s parents asking the respondent to take her belongings and go to her parent’s house until the issue was reconciled with the intervention of other family members. The appellant’s mother said that they do not want to keep petty things with them giving up their major demand of Rs 3 lakhs towards purchase of the flat. She further told that the respondent is free to bring back the materials when her father had made ready the cash of Rs.3 lakhs. The respondent was thus compelled to take few of the materials and left the place. The respondent denied the allegation that she removed her thali twice or that she declared that she was not going to stay in the appellant’s house. The efforts taken by the respondent’s family towards reconciliation failed and the respondent was sent out of the matrimonial home for the no fault of hers. It is only the greed of the appellant’s parents for money that made them to send her out of the matrimonial home. The respondent and her parents had contacted the appellant’s parents in person on various occasions proposing reconciliation and the appellants grand father was contacted in this regard, but all their efforts ended in vain.

  • The respondent’s father approached the appellants parents and his grand-father and some common friends explaining to them the events that took place leading to unnecessary misunderstandings and prayed for reunion, but this effort has been described as a defamatory campaign. The respondent requested the appellant to come and take her back to his house, but the appellant did not take her back. All efforts for reunion taken by the respondent’s parents had been misconstrued and misinterpreted by the appellant. The respondent sent several letters to the appellant but none of the letters were replied. The respondent also sent prasadam and photos of poojas performed for their welfare. After waiting for two months the well-wishers of the respondent’s family members advised the respondent to approach "The Jana Nayaka Mathar Sangam", which is a social association that help women in distress. The respondent approached the Sangam and the Sangam contacted the appellant’s parents for appointment to solve the dispute, but this has been wrongly interpreted by the appellant in his petition.

  • On 24.01.2001 the appellant’s mother lodged a complaint before the All Women Police Station, Adyar, containing false and frivolous allegations. The respondent and her family were called for an enquiry and during enquiry, they explained the entire facts including their attempt to bring about a compromise by approaching "The Jana Nayaka Mathar Sangam" and the failure of the efforts. It was informed to the police authorities that the separation had occurred in view of the failure on the part of the respondent’s family to comply with the demand of dowry to the tune of Rs.3 lakhs and the cruelty the respondent had suffered at the hands of the appellant’s family. There was six sittings to reconcile, but the same did not yield any fruitful result and hence the appellant and the respondent were advised to seek remedy before the Family Court. Even in her letter, dated 26.11.2001 written by the respondent to the appellant, she has clearly mentioned about the dowry demand. The reason for separation was not the mental status of the respondent, but because of the dowry demand made by the appellant’s family and the failure to comply with the demand. The respondent, even as on the date is wearing her Thali and she considered it as a sacred one and she never removed her Thali as alleged in the petition. Even though the appellant applied leave for his honeymoon, he spent his entire leave at home without taking the respondent anywhere outside since the demand for dowry was not meted out. The respondent and her family had not suppressed the fact of the earlier engagement and the stoppage of the marriage. Some of the vessels presented to the appellant bear the inscription of the name of V.Ramachandran itself which itself shows that the appellant and his family were aware of the earlier engagement and cancellation thereof. The allegation that the earlier engagement was annulled on account of unusual character and mental abnormality of the respondent is false.

  • The respondent is a graduate, a music lover, has practice in playing violin and she is a polite, humble and soft natured person and she is a timid girl and this has been abused by the appellant and his family members. The respondent possesses normal mental and physical health. She is willing and wants to join the appellant and lead a happy matrimonial life with him. She had not committed any acts of cruelty as alleged in the petition and there is no legal, moral or justifiable reason for the appellant to seek divorce.

  • Pending the petition for divorce the respondent/wife filed O.P.No.2268 of 2007 for Restitution of Conjugal Rights under Section 9 of the Hindu Marriages Act. In that petition, the averments contained in the counter statement have been repeated. The petition for restitution was contested by the appellant / husband by filing a counter statement, which virtually contains the averments contained in the divorce petition and therefore the same are not being repeated.

  • Before the Family Court, on the side of the appellant, the appellant was examined as P.W.1, his father was examined as P.W.2 and his grand father was examined as P.W.3 and one family friend was examined as P.W.4 and Exs.P-1 to P-4 were marked. On the side of the respondent / wife she was examined as R.W.1 and Exs.R-1 to R-9 were marked. As per the direction of the Family Court, the respondent was examined by Dr.Vijay Nagasamy, Psychiatrist and Relationship Consultant and he was examined as C.W.1 and his report was marked as Ex.C-1.

  • The Family Court, on a consideration of the evidence adduced before it, granted a decree for divorce on the ground that the marriage had not been consummated and it amounted to causing mental cruelty and the appellant’s complaint on false ground of dowry harassment also caused mental cruelty and the respondent had deserted the appellant without any valid reason but held that the alleged mental disorder of the respondent had not been proved and accordingly, rejected the prayer for divorce on that ground and consequently the Family Court rejected the petition filed by the respondent / wife for Restitution of Conjugal Rights. Being aggrieved by that, the above appeals have been filed as stated supra.

  • Heard the learned counsel on either side and perused the materials available on record.

  • Mr.V.Rangarajan, the learned counsel for the respondent/wife made the following submissions:-

  • a. The case of the husband is that he was not allowed to interact with his wife before the marriage; the wife informed the husband that the marriage was performed without her consent; she was having childish behaviour; the wife was restless and impatient during first night; the marriage was not consummated between 5.9.2001 and 17.9.2011; because of the mental disorder of the wife, the husband suffered mental cruelty; because of the police complaint lodged by the wife against the husband and his parents, they had to obtain anticipatory bail and the false allegations of demand of dowry had caused mental stress and agony, which amounts to mental cruelty; on 20.9.2001 the wife went to the house of the husband with her sister and parents and abused them in a filthy language and the whole ugly scene was witnessed by the neighbours which caused great embarrassment to the husband’s family members and their image and reputation was tarnished and at that time the wife removed her ‘mangal suthra’ which also caused mental cruelty; admittedly, the wife was earlier engaged to one Ramachandran but the marriage was stopped and this fact was suppressed by the wife and her parents; the wife was taking treatment for her mental disorder for nearly three years before the marriage and this fact had been purposefully suppressed and had the stoppage of the earlier marriage and the taking of the treatment for mental disorder been brought to the knowledge of the husband and his family, the husband would not have given his consent for the marriage.

    1. The learned counsel submitted that the allegation of mental disorder has been disbelieved and rejected by the Family Court, but divorce had been granted on the ground of mental cruelty mainly believing the incident that took place on 20.9.2001 and the suppression of real reason for cancellation of the earlier marriage. The learned counsel submitted that the case of the husband is that because the wife is suffering from mental disorder, it would amount to causing mental cruelty to the husband. The husband has not separated the grounds of mental cruelty and mental disorder. But the Family Court wrongly separated both the grounds and held that there is mental cruelty and further held that there is no mental disorder.
  • The learned counsel submitted that the engagement took place on 2.7.2011 and the marriage took place on 5.9.2001. On 7.9.2001 as the wife had leg pain due to the fact that she had to stand for long hours during marriage reception, she was sent to Orthopedic Surgeon Dr.Subramanian; on 11.9.2001 since the wife had some eye problem, she was taken to an Ophthalmologist and again on 17.9.2001 since she had stomach pain due to menstrual problem, she was taken to Dr.Radha Madhavan and all the aforesaid treatments given to the wife are at the instance of the husband’s family members and the same have been admitted in the pleadings and the evidence but the Family Court has observed that the same have not been proved by adducing acceptable evidence by the wife.

  • The learned counsel submitted that while the Family Court has totally accepted the case of the husband and without even referring to the evidence of P.Ws.1 to 4 has simply observed that the husband’s evidence has been corroborated by the evidence of P.Ws.2 to 4 and the Family Court has totally failed even to refer to the evidence of R.W.1 and the documentary evidence adduced by her; even the evidence adduced on the side of the husband has not at all been discussed; only because of the non consideration of the evidence adduced on the side of the wife erroneous findings have been recorded by the Family Court.

  • The learned counsel submitted that though it is the case of the husband that the wife was restless and impatient and speaking incoherently , there is absolutely no acceptable evidence on record and no medical evidence has been adduced and only the interested witnesses have been examined, namely, his father, grandfather and family friend; even for the occurrence said to have taken place on 20.9.2001, which was admittedly witnessed by the neighbours, none of the neighbours have been examined and no explanation has been given for their non examination.

  • The learned counsel submitted that even in chief examination P.W.1 had stated that because of their tiredness, they went to sleep on the first night but he has alleged that she had no inclination for cohabitation, which is contrary to the truth.

  • The evidence of R.W.1/wife clearly proves her educational qualification, extracurricular activities like vocal, instrumental, painting etc., which will prove that she is neither immature nor mentally ill. The learned counsel submitted that it is the case of the husband that there was no proper interaction between him and his wife before marriage. But in his cross examination, he had admitted that after the purchase of wedding dresses for the marriage, he had visited the wife’s place twice and he has also admitted that after the betrothal, he had visited the wife’s place four or five times, which is contrary to what he has stated in his petition as well as in his chief examination.

  • The learned counsel submitted that the husband and the wife lived together hardly for 12 days and in these twelve days, the wife suffered leg pain, eye ailment and stomach pain, and in these circumstances, even if there was no consummation of the marriage, the same cannot be a ground for granting divorce. The wife in her evidence has stated that she is shy in nature and she is so fond of her parents and when such a girl goes to the husband’s place after her marriage it will normally take sometime for her to adapt to such a new environment and circumstances. Had the husband been affectionate and infused confidence in her without magnifying the small mistakes, if any, on her part, it would have been possible for them to live together and consummate the marriage. R.W.1 in her evidence has categorically stated that she is very much interested in living with her husband and she had spoken about the steps taken by her parents to reconcile the differences between the two families and the efforts taken to bring about reunion, but overlooking all these facts, the Family Court has erroneously observed that the wife has not taken any steps for reunion.

  • It is the case of the husband that the stoppage of the earlier marriage was suppressed whereas in his cross examination P.W.1 has admitted that he knew about the cancellation of the earlier marriage and the earlier marriage had been stopped as her family did not like to send her with the bridegroom to U.S.A. and that was the reason for the stoppage of the marriage.

  • The learned counsel submitted that in Ex.R.3 letter written by the husband to the wife he had not mentioned anything about the alleged suppression of the stoppage of the earlier marriage and the reason for the same. The learned counsel submitted that even in Ex.R3 letter dated 8.10.2001 sent by the husband to the wife, the husband has not alleged that the wife is suffering from mental disorder and therefore, submitted that the allegation of mental disorder is a newly invented one and stated in the petition for the first time only to make out a ground for seeking divorce.

  • The learned counsel submitted that though a complaint was lodged against the parents of the husband, she had not sought for any criminal action being taken against them but only she had sought for reconciliation and on her complaint, no case was registered and therefore, it cannot be said that a false complaint for dowry demand had been lodged by the wife. The learned counsel further submitted that though R.W.1 in her evidence had deposed about the demand of Rs.3.00 lakhs made by her mother-in-law, it has not been denied by putting a suggestion in her cross examination. The learned counsel submitted that the mere filing of the complaint for dowry demand will not amount to causing mental cruelty when such complaint has not been found to be false. In this case when admittedly, no criminal case was registered, the Court below has committed an error in holding that the alleged criminal complaint had caused mental cruelty.

  • The learned counsel submitted that the husband was inside the house when the wife and her parents went to the house of the husband and as such he could not have witnessed the alleged removal of Thali by his wife. The learned counsel submitted that when the incident is said to have been witnessed by the neighbours, any one of the neighbours would have been examined to prove the incident but none of the neighbours have been examined and in the absence of corroborative evidence and only on the basis of the evidence of the interested witnesses, namely, P.Ws.1 to 4, the Court below has held that the wife had removed her ‘Thali’ which will amount to mental cruelty, which is erroneous.

  • The learned counsel submitted that when vessels and other gifts were presented to one Ramachandran at the time of Betrothal, the initials of Ramachandran were inscribed in the vessels and as the marriage was cancelled, the vessels and articles were returned to the wife and the same were presented to the husband and from that they could have easily found the initials and they would have asked the wife’s family about the initials of some other person and therefore, the allegation that the cancellation of the earlier marriage was suppressed cannot be accepted.

  • The learned counsel submitted that the Family Court has observed that the receiving of threatening calls from the respondent and her family members would amount to mental cruelty in the absence of any acceptable proof. Had the Family Court considered the letters written by the wife, it could have seen that the wife has suffered mental cruelty at the hands of the husband and his family members and not the husband and his family members at the hands of the wife and her family. The learned counsel submitted that the evidence of C.W.1 Dr. Vijay Nagasamy clearly proves that the wife is not suffering from any mental disorder or any mental illness. Therefore, the Court below is right in rejecting the prayer for divorce on the ground of mental disorder. The learned counsel submitted that the wife and her family members came to the matrimonial home on 20.9.2001, but it was the husband and his family members who did not allow her to stay in the matrimonial house and sent her back by making a demand of Rs.3.00 lakhs for purchasing a flat. The learned counsel submitted that several attempts made by the wife and her family members for reconciliation and reunion, have gone in vain because of the adamant attitude of the husband and his family members and the relevant evidence on this aspect has not at all been considered by the Family Court, which has resulted in the recording of a erroneous finding that the wife had not taken any steps for reunion with her husband. When the wife is not at fault and she had been sent away from the matrimonial home, she is entitled to get a decree for Restitution of Conjugal Rights.

  • The learned counsel in support of his submissions relied on the following decisions:-

  • a. AIR 1982 Calcutta 138 b. (1988) 4 SCC 247 c. 2003 (2) CTC 760 d. AIR 1988 SC 121 e. AIR 1982 Delhi 240 f. AIR 2003 Karnataka 357 g. AIR 1968 Punjab & Haryana 489 h. AIR 1999 Himachal Pradesh 17 i. AIR 2007 SC 1426 j. (2005) 2 SCC 22 k. AIR 2006 SC 1675

    1. Countering the said submissions, Mr.K.P.Gopalakrishnan, the learned counsel for the appellant/husband made the following submissions:-

    a. People get married for begetting a child and to have marital pleasure in the matrimonial life. But in this case, after the marriage the wife stayed with her husband only for 12 days and during that period, there was no conjugal relationship. Even during these 12 days, the wife went to her parents house several times. On 17.9.2001 the wife left the matrimonial house with no idea of return; on 20.9.2001 she returned to her matrimonial home with an idea to pick up a quarrel and after four hours of quarrel using foul words by the wife and her parents and threw away her ‘Thali’ and took all her articles and left the matrimonial home for ever; later, the wife filed a false police complaint against the husband and his parents as if they demanded dowry, which necessitated the filing of a petition for anticipatory bail; there was several threatening telephone calls to harass them; the wife made false allegations in her letters and in her counter and in her restitution petition before the Family Court, which points out the complete break down of matrimonial life with no chances of living together and no useful purpose will be served in continuing the matrimonial tie.

    1. The learned counsel submitted that it is a fit case where the marriage should be dissolved as the marriage has irretrievably broken down as per the decisions of the Apex Court. The learned counsel submitted that on the side of the appellant, the husband was examined as P.W.1 and he gave cogent evidence which was not demolished by the respondent/wife. During his chief examination, P.W.1 has spoken about the mental condition of his wife; non consummation of marriage; the incident that took place on 20.9.2001 and the removing of Thali by the wife; withholding the facts with regard to the mental condition of the wife; withholding of the reasons for the cancellation of the earlier marriage after betrothal and the evidence of P.W.1 has been corroborated by the evidence of his father P.W.2, his grandfather P.W.3 and his family friend P.W.4., but their evidence have not been demolished in the cross examination. Their evidence have been properly considered by the Family Court and only after the consideration of their evidence the Family Court has rightly granted the the decree for dissolution of marriage on the ground of mental cruelty and therefore, there is no reason whatsoever to interfere with the well considered judgment of the Family Court.
  • The learned counsel submitted that at the instance of the husband, the wife was examined by Psychiatrist Dr.Vijay Nagasami and he has submitted a report Ex.C1, wherein he has stated as follows:-

  • "She appears to have been over-protected by both parents and led an extremely sheltered life with limited social exposure."

    "Her intellectual functioning appeared to be border line on clinical examinations although no gross mental sub-normality could be detected."

    "It is difficult for such a person to lead a normal married life. They will require more training to lead normal married life."

    "By giving proper training it may be possible for her to work on the relationship."

    "She is perfectly rational but less aware as to how to conduct herself in married life."

    "Under socialised person can lead a normal life if they are given proper training."

    "Anitha did not tell me that prior to the marriage she had consulted psychiatrist and that she has taken medicine. Anitha did not tell me that she had consulted Psychologist and she was taking mediation for her psychological problems."

    "According to my report Anitha is suffering from low self esteem, over protection by her parents, extremely limited interaction with opposite gender, delayed response to questions put to her, undersocialised behaviour problem, frontal lobe deficits and border line IQ."

    1. The learned counsel submitted that R.W.1 (wife) had admitted in her evidence that she has the mind of a child; she is under treatment for three years with Dr.Nambi Rajan; she does not know the names or dosage particulars of the tablets prescribed by Dr.Nambi Rajan; she is not interested to have sex and she is not interested in matrimonial life. According to the learned counsel, all the aforesaid submissions point out to a mental disorder of such a kind and extent that the appellant/husband cannot be reasonably expected to live with the respondent/wife. The report of the doctor C.W.1 also shows that the wife has incomplete development of mind as contemplated in the Act.
  • The learned counsel submits that her mental condition was not intimated to the husband and his family members. Similarly, the reasons for cancellation of the earlier marriage was also not intimated to the husband and his family members, which amounts to withholding of vital information concerning the wife this would entitle the husband to seek a decree for divorce on the ground of nullity under Section 12(1)(C) of the Hindu Marriage Act.

  • The learned counsel submitted that the Family Court having concluded that there was material misrepresentation failed to pass a decree of nullity under Section 12(1)(c) of the Hindu Marriage Act. The learned counsel submitted that the petition for restitution of conjugal rights has to be decided separately on merits. In this case, the husband had not withdrawn from the company of his wife, whereas the wife has withdrawn voluntarily from the company of the husband without any reasonable cause and therefore, she is not entitled for restitution of conjugal rights.

  • In support of the aforesaid submissions, the learned counsel relied on the following decisions:-
    a. 2010 1 MLJ 889
    b. 2009 5 LW 781
    c. 2009 3 LW 708
    d. 2009 2 LW 192
    e. 2009 2 LW 43
    f. 2009 1 LW 332
    g. 2008 4 MLJ 1172
    h. 2008 3 LW 864
    i. 2007 5 MLJ 1397
    j. 2007 4 LW 249
    k. 2007 2 LW 902
    l. 2006 2 LW 606
    m. 2006 2 LW 419
    n. 2005 4 CTC 287
    o. 2005 2 SCC 22
    p. 2003 4 LW 609
    q. 2002 2 LW 250

  • We have considered the aforesaid submissions and perused the materials available on record.

  • At the outset we would like to point out that a perusal of the judgment of the Court below shows that the Family Court has not at all referred to and discussed the evidence of R.W.1 and the documentary evidence adduced on her side. Similarly, the Family Court after referring to the case of the husband has referred to a part of P.W.1’s evidence and has not at all referred to and discussed the evidence of P.Ws.2 to 4 and simply has stated that the allegations have also been substantiated by P.Ws.2 to 4. Similarly, as regards the incident that took place on 20.9.2001 after referring to P.W.1’s evidence the Family Court has observed that the same has been proved. The evidence of P.Ws.2 to 4 is neither referred to nor discussed.

  • As far as the alleged telephone calls said to have been received by the husband’s family, the Family Court has based reliance on the complaint of the husband’s mother with the All Womens Police Station, Adayar. The Family Court has not at all referred to the allegations contained in the complaint lodged by the wife and in fact the complaint was not marked separately. The Family Court has observed that the contention of the wife that due to the physical ailment of thigh pain, eye pain and stomach pain she was not able to cohabit with the appellant for the said twelve days is not acceptable because there is no supporting medical proof for the same to the effect that during the said period due to the said ailment she is not in a position to have cohabitation as she was medically prevented for the same. The said observation is totally perverse as the husband himself in his petition as well as in his evidence admitted that she was treated for the said ailments. The admitted fact need not be proved by the wife. Therefore, it is clear that the Family Court has not at all applied its judicial mind to the evidence available on record. Similarly, we would like to point out that some of the submissions made by Mr. K.P.Gopalakrishnan, learned counsel for the appellant/husband are not based on any evidence.

  • The following are the admitted and undisputed facts:-

  • a. The betrothal between the appellant and the respondent took place on 12.7.2001. The marriage was solemnised on 5.9.2001. The respondent wife complained of leg pain and she was taken to Orthopedic doctor and was treated and she was advised to come bak again for a test. On 15.9.2001 at the instance of appellant’s parents, the respondent was taken to Psychiatrist Dr.Mohan Raj; on 17.9.2001 she had to leave the matrimonial home because of stomach pain due to menstural problems; on 20.9.2001 the respondent/wife with her family members went to the matrimonial home; on 24.11.2001 the mother of the appellant/husband filed a false complaint against the respondent/wife and her parents; on 25.11.2001 the respondent/wife gave a complaint at All Womens Police Station, Adayar; but no case was registered; on the basis of the both the complaints only counselling was conducted and in these circumstances, a petition for dissolution of marriage was filed by the appellant/husband on 25.2.2002.

    1. The following alleged acts and omissions on the part of the wife are relied upon by the appellant/husband to contend that the same caused mental cruelty to him:-

    a. On the first night, the respondent/wife behaved inappropirately without any enthusiasm; she was restless and impatient; she behaved strangely and childishly and did not allow the appellant/husband even to touch her and the marriage was not consummated; the respondent/wife even on the very first night informed the appellant that the marriage was performed against her consent and will and she was not interested in marrying the appellant; on 12.9.2001 the respondent/wife, who was accompanied by the appellant’s father, left the house to go to Opthal clinic, but on the way she insisted to go to her parents house and on reaching her parents house she changed her mind and refused to go to the clinic and she removed her Thali and refused to leave her parents house; on 14.9.2001 the respondent and her parents visited the appellants grandfather’s residence and wanted to reconcile the issue and at that time, she spoke incoherently and seemed very restless and impatient; on 20.9.2001 the respondent/wife and her family members came to the appellant’s house and they behaved in a very indecent manner; they abused the appellant and his family members by using filthy words which caused severe embarrassment to the appellant and his family members as the incident was witnessed by their neighbours and passers by; only after four hours they left with the articles of the respondent without the knowledge of the appellant and at that time the respondent/wife removed her Thali twice saying that it was not necessary; on 21.11.2001 repeated phone calls were received by the appellant and his parents to the effect that the representatives of women’s association would visit the appellant’s house and apprehending some trouble, the appellant’s father gave a complaint with the Abiramapuram Police Station, but none turned out; on 25.11.2001 the parents of the respondent lodged a complaint against the appellant and his parents which necessitated the appellant for seeking anticipatory bail for him and his family members; in the complaint false allegations of dowry demand have been made, which caused great mental cruelty.

    1. Ex.R.3 is the letter dated 8.10.2001 written by the appellant/husband to the respondent/wife. In Ex.R3 except the following, nothing has been stated about what happened in the first night:-

    "It is painful to say that the marriage was wrecked on the wedding night itself. The marriage was not consummated."

    1. Though in Ex.R.3, the appellant has narrated everything in minute details, he has not stated that the respondent behaved inappropriately without any enthusiasm; she behaved very strangely and childishly and did not allow the appellant even to touch her; she appeared to be frightened and agitated; she was restless and impatient; she never allowed the appellant to touch her; on the first night, she informed him that her marriage was against her will and consent and she was not interested in marrying the appellant and therefore, we are of the considered view that the aforesaid allegations made in the petition for divorce do not find place in Ex.R3 but are only invented for the purpose of this case. When all the other events have been mentioned with minute details, if really, the respondent/wife had behaved as alleged by the husband, he would have mentioned the same in Ex.R.3. Except the non consummation of the marriage, none of the allegations have been mentioned in Ex.R3. Therefore, the said allegations appear to be invented only for the purpose of this case. In fact, P.W.1 in his chief examination has stated as follows:-"உடல் சோர்வாகயிருக்கிறது என்று அவர் சொல்லவே நான் அவரை தாம்பத்திய உறவிற்கு வற்புறுத்தவில்லை

    55/ Though P.W.1 has stated in his chief examination that the respondent/wife told that she is not interested in sexual intercourse, there is no such pleading in the petition. Any amount of oral evidence without pleading cannot be looked into. Similarly, in his chief examination, P.W.1 has stated that before the doctor the respondent/wife has stated that she is not interested to have a child. But there is no such pleading in the petition.

    1. It is an admitted fact that on 7.9.2001 the respondent/wife complained of leg pain and the appellant’s father took her to Dr.M.Subramaniam M.S. (Ortho); on 11.9.2001 she complained of eye pain and she was taken by the appellant to Dr.Radhika, Ophthalmologist; on 17.9.2001 she complained of severe stomach pain and she was taken to Dr.Radha Madhavan by the appellant’s mother. The aforesaid facts have been stated in the petition and have been admitted by P.W.1 in his evidence. But the Family Court has observed that the said allegations have not been proved by the respondent/wife by adducing medical evidence. Admitted facts need not be proved. This simple proposition of law that has not been kept in mind by the Family Court.
  • It is relevant to point out that even in Ex.P.3 dated 26.11.2001 the letter written by the respondent/wife to her husband before the filing of the divorce petition, she has stated as follows:-

  • "Regarding our Wedding night (nuptial) you have to understand that I had entered a new atmosphere of your house and the only other members present in the house were your mother and sister. How can a just married girl be without shyness, fear and anxiety on her first night. In spite of that, I cooperated fully with you on the wedding night and all the subsequent nights I stayed with you."

    "I have lived with my parents and only sister for more than 20 years in a very homely atmosphere. About my timid nature and shy behaviour my parents have spoken to you and your parents you admired my softness and discipline. Your father praised me whenever occasion permitted and I thank him for that."

    "I was a darling of my house. It takes some time for me or my parents to adjust to each one’s absence."

    "Our relations and friends say that newly married couple go for honeymoon for developing their better understanding of each other. Till today we never went anywhere you had decided to stay at home the whole of your 20 days of leave (granted by your office). the local Valluvar Kottam, beach, and a Cinema were only outings I had with you and where we could hardly understand each other."

    "During the course of conversation your mother spoke badly at which my father raised a logic point that, while your mother has been so fond of her father who visits your house almost every day. Why you restrict us even talking over phone ? I also feel the same."

    "Did you not repeatedly utter the word "divorce" in the Cinema Theatre even during the show was running? A wedded wife is not a use and throw property . Do you want to justify all your actions of your family members including you and blame my parents for the simple reason of questioning you all, out of sudden disappointment on your indifferent attitude?

    "Apart from this my parents were shocked when your parents wanted and demanded 3 Lakhs (Rupees Three Lakhs Only) as they have a plan to buy your adjacent flat in which your are living for rent."

    " Your mother insisted to pay atleast 2 Lakhs within a month and the balance after some time. She also made an indirect threat the happiness of their daughter (myself) depends on the response to their demand. Now I understand that the threat of divorce has come directly from you on the inducement of your parents."

    1. But the aforesaid averments in the letter dated 26.11.2001 have neither been referred to nor denied in the petition or in the evidence of P.W.1. The respondent in her cross examination has stated as follows:-ehd; rhJthd bgz;/ kpft[k; mikjpahd bgz;/ bgw;nwhh;fis rhh;e;J ,Ug;ngd;/ vdf;F FHe;ij kdJ/59/ In her chief examination also she has stated that with full mind and heart consented to the marriage and there was no question of the marriage being performed against her will. She has deposed in her chief examination that at the time of engagement she was asked to sing songs and she sang some songs. She has also deposed that the appellant had come to her house to see the wedding dresses and on that occasion, the appellant interacted with her, but the same had not been rebutted in the cross examination. In her cross examination, she has deposed as follows:-

    "எங்களுக்குள் தாம்பத்திய உறவு நடக்கவில்லைஃ நான் தான் முதலிரவு வேண்டாம் என்று சொல்லிவிட்டேன். இதற்கு எனக்கு கூச்ச சுபாவம் இருக்கிறது

    60/ A perusal of the cross examination of R.W.1 shows that none of the allegations made by P.W.1 in the petition as well in his evidence as to what had happened during the first night have been suggested to R.W.1. It has not even been suggested to R.W.1 that the appellant’s mother did not demand Rs.3.00 lakhs as dowry for purchasing a flat. It has also not been suggested to R.W.1 that she is suffering from such mental disorder and to such an extent that the appellant cannot reasonably be expected to live with the respondent. It has not been suggested to her that she told the appellant that she was not willing for the marriage with the appellant and she did not like the appellant etc.

    1. It is also pertinent to point out that in his chief examination itself, the appellant/husband has stated as follows:-

    என்னை பலவாறாக துன்புறுத்தியதாலும் எதிர்மனுதாரர் கல்யாணத்திற்கு ஏற்றவர் அலல என்பதாலும். பார்ய நிச்சயதாம்பலம் நடந்ததை சொல்லாததாலும் அவரைப்பற்றி விவரங்கள் மறைத்துவிட்டதாலும் கொடுமைபடுத்தியதாலும் நான் விவாகரத்து கெட்டு மனு தாக்கல் செய்துள்ளேன்

    1. But he has not stated that because of the alleged mental disorder, the respondent wife behaved with him or his family members in an aggressive manner or indulging in any violent act. He has also not even deposed or suggested to R.W.1 that because of the mental disorder or mental illness of the respondent/wife it will not be possible for him to live with the respondent/wife any longer. P.W.2 also in his chief examination has not mentioned about any abnormal behaviour of the respondent/wife. He has not deposed about the mental status of the respondent/wife and has not stated that at any point of time she behaved violently and it would not be possible for his son to live with the respondent because of her mental condition. P.W.3 has also not stated in his evidence about the mental condition of the respondent/wife. Though P.Ws.1 to 4 have stated that on 20.9.2001, the respondent/wife removed her Thali and thrown on the floor, the same has not been mentioned in Ex.R.3 letter written by the appellant to the respondent. In Ex.R3 what he has stated is as follows:-

    "Just before leaving, you attempted to remove your thali twice"

    but there is absolutely no mention about the removal of Thali as spoken by P.Ws.1 to 4 and as stated in the petition. If really, the respondent had removed her Thali twice as alleged by the appellant and the witnesses, the same would have been definitely mentioned in Ex.R3. Even in the complaint, dated 24.11.2001 lodged by the mother of the appellant, which forms part of Ex.P.4, the alleged removal of Thali by the respondent/wife has not been referred to. For Ex.R.3 letter written by the appellant, the respondent/wife sent a detailed reply Ex.P.4, for that no reply has been received. It has also not been referred to in the petition. Thus the whole story regarding removal of Thali by the respondent appears to be only an invented reason to make out a case for obtaining a decree for divorce.

    1. So, we are of the considered view that if, as alleged by the appellant and other witnesses examined on his side, the respondent and her family members had indulged in an unruly behavior as alleged and the same had been witnessed by the neighbours at least anyone of the neighbours could have been examined, but none have been examined and therefore, in the absence of any corroboration by any independent witness, we are unable to believe the evidence of P.Ws.1 to 4 regarding the alleged incident that took place on 20.9.2001. Therefore, the said alleged incident has not been proved by adducing acceptable evidence. For the aforesaid reasons, we are unable to accept the evidence of P.Ws.1 to 4.
  • In her complaint, dated 25.11.2001 before the Sub Inspector of Police, Magalir Kaval Nilayam, Adayar, she has mentioned about the demand made by her mother-in-law for Rs.3.00 lakhs and about her inability to pay the said amount. She had referred to the efforts taken for reconciliation and the refusal to take her back to the matrimonial home. She has also referred to the phone calls made by her to the appellant. She has also referred to the invitation extended to the appellant and his family members by the parents of the respondent for Deepavali. She has also mentioned that she had not done anything or spoken any words to wound their feelings and her parents have gone out of their way to satisfy their un-satiable demand. She has finally only requested for the intervention of the Sub Inspector of Police and speak to her in-laws so that rapprochement could be effected and nowhere she had sought for any criminal action to be taken against her husband or her in-laws. In fact, as rightly contended by the learned counsel for the respondent that no case was registered against the appellant and his parents and only counseling was conducted and as the counseling failed both the parties were advised to seek appropriate remedy before the civil court. When the respondent wife had ventilated her grievances in her complaint to the police for which she is legally entitled to, it cannot be said that the same will amount to causing mental cruelty to the appellant. Therefore, the finding of the Family Court that the lodging of false complaint as if the appellant and his family members had demanded Rs.3.00 lakhs as dowry has caused mental cruelty to the appellant is erroneous. In fact, as discussed above, in the course of cross examination of R.W.1, it has not even been suggested to her that no demand for Rs.3.00 lakhs as dowry had been made by appellant’s mother as spoken to by her in her chief examination. Thus, the said allegation of demand for dowry goes un-rebutted. Therefore, it cannot be said that the false allegations have been made by the respondent/wife regarding demand for dowry. Therefore, in our considered view the alleged acts of cruelty against the appellant have not been proved and therefore, the Family Court is not right in granting a decree for divorce on the ground of mental cruelty.

  • As far as the allegation regarding non consummation of marriage is concerned, we are of the considered view that the Court below has not considered the said issue in the proper perspective and has not properly considered the evidence of R.W.1 and the facts and circumstances of the case. As pointed out above, R.W.1 in her evidence has stated that she is innocent, peace loving girl, solely depending on her parents and her mind is that of a child (FHe;ij kdJ). She has also stated in her Ex.P.3 letter that the appellant had to understand that she entered a new atmosphere of his house and how can a just married girl be without shyness, fear and anxiety on her first night. She was the darling of her house and it takes sometime either for her or her parents to adjust to each one’s absence.

  • She has also pointed out that the appellant availed 20 days leave at the time of marriage but he had not taken her for honeymoon as planned. Even when they went for a movie, in the cinema theater he had repeatedly uttered the word divorce. Even in a short period of 12 days, the appellant had threatened to divorce the respondent and as such, the same would have caused great mental stress and agony to the respondent. Even during the 12 days period as admitted by the appellant they have lived together only for 6 or 8 days . Had the appellant and his family members treated the respondent with love and affection without making any demand for further dowry and without insisting her parents to take her to a psychiatrist alleging that she is having mental illness and given an opportunity for her to settle down in the new environment of the matrimonial home, she would have adapted to the new environment and the marriage itself would have been consummated. Even assuming that the marriage had not been consummated, considering the fact that both of them have lived together only for 6 or 8 days, the said period cannot be considered to be a long period for holding that the marriage had not been consummated and therefore, it has caused mental cruelty to the appellant as claimed by him.

  • In the decision reported in 2007 (3) CTC 464 (Samar Ghosh vs. Jaya Ghosh), the Apex Court culled out illustrations of ‘Mental Cruelty’ in paragraph 102, and laid down as follows:-

  • "(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it difficult to live with the other party any longer, may amount to mental cruelty. "(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."

    1. The facts and circumstances of this case and the evidence available on record has to be considered in the light of the legal principles laid down by the Apex Court. As per the above legal principles, the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to "mental cruelty". The ill conduct must be persistent for a lengthy period.
  • In this case, admittedly, both of them have lived together only for a period of 12 days and even during this short period, no act or omission on the part of the respondent which has caused mental cruelty to the appellant has been established. It is too short a period to consider that any act on the part of the respondent had caused mental cruelty to the appellant. Similarly, unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. Therefore, the refusal to have intercourse should be for a considerable period and then only it will amount to mental cruelty. As stated above, within 12 days, both of them lived together only for 6 or 8 days and during that time even if there was no sexual relationship between them and therefore, the 12 days period cannot be considered to be a long period and the non consummation of the marriage between the appellant and the respondent during this short period will not amount to mental cruelty as contended by the learned counsel for the appellant/husband. Therefore, we are unable to sustain the finding of the Family Court on this aspect and hence, the same is set aside.

  • The respondent being a newly married girl and having been sent to the matrimonial home from her parental house, she has been totally uprooted from her parents house. She would be in the position of a sapling which has been plucked from the nursery and transplanted in some other place. Unless the newly transplanted sapling is watered and taken proper care of by the gardener or care taker, the newly transplanted sapling will not grow but it will wither away. Like that a newly married young girl in her matrimonial home will find it difficult to adapt to the new environment, atmosphere and circumstances and it will take some time for her to get adapted to the same and for that the love and affection of the members of the matrimonial home is a must. But from the evidence adduced in this case, it could be seen that neither the appellant nor his family members have treated the respondent with love and affection but have started finding fault with her and have gone to the extent of saying that she is mentally ill and have started demanding dowry from her parents and insisted her to take treatment for mental disorder with a psychiatrist. The appellant had threatened to divorce her within 12 days and he had not taken her for honeymoon though he had availed 20 days leave. Thus it is clear that she had not been treated with love and affection and as admitted by her she is a timid girl and as such it would not be possible for her to adapt to the new atmosphere and environment in the absence of love and affection from her husband and in-laws and unless she adapts to the new environment and atmosphere it would not be possible for her to have sexual intercourse with the appellant. Therefore, the non consummation of the marriage during the short period of 12 days, cannot be a ground for holding that it will amount to causing mental cruelty to the appellant.

  • As has been laid down by a Full Bench of the Apex Court in the decision reported in AIR 2006 SUPREME COURT 1675 (Naveen Kohli v. Neelu Kohli), to constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to be deal with particular man and woman before it.

  • But unfortunately the Court below has not applied the aforesaid legal principles to the facts of this case while considering the allegation of mental cruelty. We are of the considered view that the Family Court has taken a too technical and hypersensitive approach without realising that it would be counter productive to the institution of marriage. The acts alleged against the respondent cannot be said to be such that no reasonable person would tolerate it. Therefore, we are of the considered view that the Court below is not right in granting a decree of divorce on the ground of mental cruelty.

  • As far as the alleged suppression of the real reason for the cancellation of the earlier marriage after the engagement of the respondent with one Ramachandran is concerned, it has to be pointed out that in his cross examination, P.W.1 has stated as follows:-

  • "vdJ jpUkzj;jpw;F Kd;g[ vjph;kDjhuUf;F ntW egUld; epr;rak; Md tptuk;. mjhtJ me;j khg;gps;is mbkhpf;fh bry;ytpUe;jjhy; vjph;kDjhuh; mbkhpf;fht[f;F bry;y tpUg;gk; ,y;yhjjhy; me;j jpUkzk; epd;Wtpl;l tptuj;ij v’;fs; tPl;lhhplk; vjph;kDjhuh; jug;gpy; TwpaJ vdf;Fj; bjhpa[k;/

    74/ Thus it is seen that the reason for cancellation of the marriage of the respondent earlier fixed with one Ramachandran is that the said Ramachandran after engagement got a job in U.S.A., but the respondent did not like to go to America and the same had been informed to the parents of the appellant and it was also known to P.W.1. Thus, the very allegation in the petition and in the evidence of P.Ws.1 to 3 on this aspect is totally false. Therefore, there is absolutely no suppression of any material fact attracting Section 12(1)(c) of the Hindu Marriage Act for annulling the marriage between the appellant and the respondent.

    1. As far as the allegations that the respondent is suffering from mental disorder is concerned, we are of the considered view that the said allegation has not been proved and made out. In this aspect, the submission made by Mr.K.P. Gopalakrishnan, learned counsel for the appellant/husband basing reliance on the report Ex.C1 of C.W.1 cannot be countenanced.
  • What C.W.1 has stated is that it is difficult for such a person to lead a normal married life and they will require more training to lead normal married life; by giving proper training it may be possible for her to work on the relationship; undersocialised persons can lead a normal life if they are given proper training. In Ex.C1 report, C.W.1 Doctor has given his final impression as follows:-

  • a. Tmt. J. Anitha does not suffer from any mental disorder as listed in Chapter V of the World Health Organisation’s International Classification of Diseases (10th edition 2007 version) or the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM IV -TR).

    1. Tmt. J. Anitha manifests Borderline Intellectual Functioning not amounting to Mental Regradation or Mental Subnormality.
  • Tmt. J. Anitha has deficts in social skills and abstract thinking that themselves not clinically significant.

  • There is no prima facie evidence that Ms. J. Anitha cannot settle down to satisfactory married life if she is provided a conducive environment to do so.

  • Less than two weeks of married life cannot form basis for a long term decision of an individual’s marriage ability or marital capacity."

  • The aforesaid report shows that the respondent is not suffering from any mental disorder.

  • In this context, it will be useful to refer to Section 13(1)(iii) of the Hindu Marriage Act, which reads as follows:-

  • "13. Divorce (1) xxxxxxxxx

    (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

    Explanation : – In this Clause –

    (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

    (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or"

    1. The learned counsel for the appellant relied upon the explanation to Section 13(1)(iii) of the Act, which says that the expression "mental disorder" includes incomplete development of mind and psychopathic disorder. According to the learned counsel as the medical evidence shows that there is Border Line Intellectual Functioning IQ 85 which will amount to sub-normality of intelligence, which would also include ‘disability of mind", the Court below is not right in holding that the respondent is not suffering from any mental disorder, but the said contention cannot be countenanced for the reason that Explanation ‘b’ to Section 13(1)(iii) of the Act cannot be read in isolation as sought to be done by the learned counsel for the appellant but it has to be read as a whole. The expression "psychopathic order" means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
  • It has to be pointed out that in Ex.R-3-letter written by the appellant to the respondent it has not been alleged that the respondent / wife is suffering from mental disorder. In Ex.R-3-letter the appellant has stated that noting her behaviour on 12.09.2001 they thought it will be prudent if a psychiatrist is consulted; on 15.09.2001 she was taken to Dr.Mohan Raj, M.D., Psychiatrist, at Vantage Plaza, L.B.Road, Adyar, Chennai, by her father; the Doctor desired to see her with the appellant again in the same evening; after counseling on the 15th evening at 07.30 pm, the Doctor informed the appellant that she was suffering from over anxiety; he advised the respondent to settle in a new house and slowly gain confidence, but it is not stated that the Doctor had stated that she is suffering from any mental disorder. If really the respondent / wife was suffering from mental disorder and when admittedly she had been taken to Dr.Mohan Raj, Psychiatrist, the appellant would have certainly mentioned about the same in Ex.R-3-letter and thus, the non-mentioning of the same shows that the allegation of mental disorder in the petition is only an after thought and has been invented only as a reason for obtaining dissolution of marriage. 81. In this case we have already pointed out that there is absolutely no evidence on the side of the appellant that the respondent at any point of time acted in an abnormally aggressive or seriously irresponsible manner Therefore, the explanation "b" to Section 13(1)(iii) of the Act is not attracted. Further, it has to be pointed out that admittedly, the respondent is a first class B.Com., Graduate and in fact she got admission to M.Com., in Stella Mary’s College and she had to discontinue her post graduation course as her parents wanted to give her in marriage. She has also deposed that she is good at vocal and instrumental music. Further, it has to be pointed out that if she lacks mental development or her intelligence is sub-normal or very low, she could not have withstood the aggressive cross examination made by the appellant’s counsel. A reading of her cross examination shows that she had understood all the questions put to her and answered them in a normal way. Therefore, we do not find any abnormality in her answers. R.W.1’s evidence shows that she had taken treatment for over anxiety with Dr. Nambi Rajan prior to her marriage and she has also mentioned about the name of the tablet and strength of the medicine. Therefore, the contention of Mr.K.P.Gopalakrishnan, learned counsel for the appellant that the respondent does not even know the medicines taken by her is not correct. There is no evidence to show that the respondent was treated for mental disorder prior to her marriage and therefore, there is no suppression of any material fact concerning the respondent/wife as alleged. Therefore, we are of the considered view that there is absolutely no evidence to hold that the respondent/wife is suffering from mental disorder. It is pertinent to point out that what is required to be proved for the purpose of Section 13 (1) (iii) of the Hindu Marriage Act, 1955, is that the respondent / wife is not only suffering from mental disorder, but also of such a degree and extent that the appellant / husband cannot reasonably be expected to live with her as her spouse. We are of the considered view that this has not been made home at all from the evidence on record. Therefore, the Court below is right in holding that the alleged mental disorder of the respondent/wife has not been proved and has rightly rejected the petition for divorce on the ground of mental disorder.

  • Now let us consider the decisions relied upon by the appellant’s counsel:-

  • a. In the decision reported in (2010) 1 MLJ 889 (T. Narayanasamy vs. N. Kaleeswari), the learned Single Judge of this Court has come to the conclusion that the parties have been continuously living separately without sincere attempt or any intention to have reunion between them and therefore, the continuance or allowing the existence of marriage between them will not serve any purpose and hence, their marital relationship has to be put to an end by dissolving their marriage and has also come to the further conclusion that the marriage has broken down irretrievably and on that ground a decree for divorce has been granted. But in this case, the respondent/wife had taken serious efforts as could be seen from her letters to her husband and in-laws and her evidence. Moreover, irretrievable break down of marriage being not a ground enumerated under section 13 of the Act, a decree for divorce cannot be granted on that ground.

    b. In N. Shankar vs. S.Saraswathi (2009-5-L.W-781), the Division Bench of this Court has held that the denial of marital comforts to each other for a long period of life undoubtedly will lead to mental cruelty. Further, the Division Bench has held that reckless and serious allegations regarding extra marital affairs will amount to mental cruelty. Therefore, the facts of that case are totally different from the facts of the case on hand and hence, the said decision is not applicable to the case on hand.

    c. In D. Nagappan vs. T. Virgin Rani (2009-3-L.W.708), the Division Bench has held that a false allegation of illicit intimacy against the husband will amount to mental cruelty. But in the case on hand such allegations have not been made by either of them. Therefore, the said decision is not applicable to the case on hand. In the very same decision, it has been further held that the Family Court should independently examine the facts in each case before granting the prayer for divorce as well as the restitution of conjugal rights. The said principle will be considered at the time of considering the appeal filed by the respondent/wife against the dismissal of her petition for the restitution of conjugal rights.

    d. In the decision reported in 2009-2-L.W.192 (Satish Sitole vs. Smt.Ganga) by invoking its power under Article 142 of the Constitution of India, the Apex Court dissolved the marriage on the ground that the marriage has irretrievably broken down. Therefore, the said decision is not applicable to the facts of the case on hand.

    e. Since the facts of the case in the decision reported in 2009-2-L.W.43 (C. Anantha Jeyakumar vs. C. Murugapriya) are totally different from the facts of the case on hand, the said decision is not applicable to the case on hand.

    f. Since in the decision reported in (2008) 4 MLJ 1172 (R. Anand vs. P.Indu), the allegations about the dowry harassment were found to be false, the learned Single Judge has held that it will amount to mental cruelty. But in the case on hand, the allegations about the dowry demand have not been found to be false and in fact, the same has been substantiated and therefore, the said decision is not applicable to the case on hand.

    g. On the basis of the facts, the Division Bench of this Court in the decision reported in 2008-3-L.W.864 (Dr.Gopal Ramanathan vs. Jayashree) has come to the conclusion that the marriage has broken down irretrievably and the husband and wife were living separately for 20 years and on that ground the marriage was dissolved. The facts of that case are totally different from the facts of the case on hand and therefore, the same is not applicable.

    h. Similarly, in the decision reported in (2007) 5 MLJ 1397 (N.Subramani vs. T.Shanta), the decree for dissolution was granted on the ground that the marriage has irretrievably broken down and therefore, the said decision is not applicable to the case on hand.

    i. In Smt. Mayadevi vs. Jagdish Prasad (2007-4-L.W.-249), the Apex Court on the facts of that case came to the conclusion that the husband was subjected to physical and mental cruelty by the wife and on that ground the decree for divorce was granted. But in this case, we have already discussed and pointed out that the alleged acts of mental cruelty have not been established and therefore, the said decision is not applicable to the facts of the case on hand.

    j. The decision in A. Viswanathan vs. G. Lakshmi @ Seetha (2007-2-L.W.902) is not applicable to the facts of the case on hand.

    k. In the decision reported in 2006-2-L.W.606 (Naveen Kohli vs. Neelu Kohli), the Full Bench of the Apex Court on a consideration of the facts and evidence of that case came to the conclusion that the mental cruelty as alleged by the husband had been established and further held that the marriage was totally dead and taking into consideration of the extraordinary facts and circumstances of that case dissolved the marriage between the parties by directing the appellant to pay Rs.25,00,000/- to the respondent towards maintenance. In that decision, the Apex Court had recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. But the Hon’ble Apex Court has not granted decree of divorce on the ground of irretrievable breakdown of marriage and therefore, the said decision is not applicable.

    l. In the decision reported in 2006-2-L.W.419 (Vinita Saxena vs. Pankaj Pandit), the Apex Court has considered what is mental disorder and when it will amount to cruelty. In that case, the Apex Court has come to the conclusion that the medical evidence has proved the mental disorder of the respondent beyond doubt. The Apex Court has pointed out that Schizophrenia is one of the most dangerous/damaging form of mental disorder and on that ground the decree for divorce was granted and therefore, the facts of that case are totally different from the facts of the case on hand and therefore, the said decision is not applicable to this case.

    m. In Durga Prasanna Tripathy vs Arundhati Tripathy (2005(4) CTC 287), on the ground of irretrievable break down of marriage, the decree for divorce by exercising the powers under Article 142 of the Constitution of India was granted by the Apex Court and therefore, the said decision is not applicable to the case on hand.

    n. In A. Jayachandra vs. Aneel Kaur ((2005) 2 SCC 22), the Apex Court has laid down that what will constitute mental cruelty. In that case, the wife used abusive language and made allegations of adultery against the husband and the Apex Court has held that it will amount to causing mental cruelty. Therefore, the said decision is not applicable to the facts of this case as the facts of that case are totally different. o. In the decision reported in 2003-4-L.W.-609 (Vijayakumar Ramachandra Bhate vs. Neela Vijaykumar Bhate), the Apex Court has held that the averments, accusations and character assassination of wife made by the appellant/husband in the written statement will amount to mental cruelty for sustaining her claim for divorce under Section 13(1)(i-a) of the Act. In this case, no such ground is available and therefore, the said decision is not applicable to the facts of this case.

    p. The facts of the case in P. Natarajan vs. Thamizmani (2002-2-L.W.250) and the facts of this case are totally different and therefore, the said decision is not applicable to the case on hand.

    1. The issue that remains to be considered is as to whether the Family Court is right in dismissing O.P.No.2268 of 2007 filed by the respondent / wife under Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights.
  • The Court below, in its judgment, has observed that the respondent for the past eight years had deserted the appellant without any valid reasons and there is no chance for reunion between the appellant and the respondent considering the facts and circumstances of the case. It has further observed that the respondent / wife has not taken any steps for reunion and therefore she is not entitled for the relief of Restitution of Conjugal Rights.

  • The aforesaid observation have been made by the Court below without even discussing the oral evidence of R.W.1 and the documentary evidence adduced by her. Ex.P-3 is the letter, dated 26.11.2001 written by the respondent / wife to her husband / appellant, as a reply to Ex.R-3-letter written by her husband on 08.10.2011, wherein, she has point-by-point replied her husband’s allegations and she has mentioned that her parents’ visited the bank and met an official there to initiate efforts for reunion between the families and not to spoil the image of the appellant and she has also mentioned that her parents have been making all efforts to settle the matter amicably. She has expressed her hope that the appellant will take her into his hold as she has clearly explained to him all the points he had raised. Ex.R-7 is a letter, dated 06.10.2001 written by the respondent to her in-laws wherein she has mentioned that she had been waiting for them to come as they had told of their arrival to take her back. Ex.R-8 is another letter written by the respondent / wife to her husband / the appellant herein on 08.02.2002. It has been written in a friendly manner enquiring about his official visit to Madurai and informing him about the Homam and Abishegam performed in various temples and she has enclosed the prasadam to him and in the concluding portion of the letter, she has written as follows:-

  • I pray Almighty to restore happiness in our life. My respects to father, mother and grandfather.

    Ex.R-9 is another letter, dated 26.02.2002 written by the respondent / wife to her husband / appellant herein wherein she has mentioned that he had not replied to her earlier letters. She has requested the appellant to come to her house to take her with him. She has further stated as follows:-

    I still pray for a fine understanding of our families and enable us to live in harmony and peace.

    1. As rightly submitted by Mr.Rangarajan, learned counsel for the respondent, that R.W.1 in her evidence has categorically stated that she is very much interested in living with her husband and has spoken to about the steps taken by her parents to reconcile the differences between the two families and the efforts taken to bring about reunion. But unfortunately the Court below has totally overlooked all these facts and has not cared even to look at the evidence of R.W.1 and letters written by her to her husband much less to discuss the same.
  • The aforesaid letters written by the respondent / wife to her husband / appellant and her in-laws make it abundantly clear that she was always wanting and willing to go back to the matrimonial home, but there was no response from the appellant’s side. Whereas there is no evidence on the side of the appellant / husband to show that the appellant took any efforts to take her back to the matrimonial home. The evidence on record clearly shows that even during the twelve days both of them lived together the appellant had threatened the respondent that he will divorce her. The demand for dowry of Rs.3 lakhs by the mother of the appellant seems to be the main reason for the separation, but in spite of this, the respondent wants to live with the appellant. But overlooking all these facts and evidence, the Court below has erroneously come to the conclusion that the respondent had not taken any steps for reunion. The said finding of the Court below and the finding that the respondent had deserted the appellant without any cause is perverse and not based on any evidence and accordingly the said findings are set-aside.

  • We are constrained to observe that only because of the perverse and unsustainable order passed by the Court below, the life of two youngsters have been ruined for the past nine years. Had the Family Court considered the entire evidence, in the light of the well settled legal principles as stated above, the Court below would not have dissolved the marriage between the appellant and the respondent and in that event, there would have been a possibility for their reunion. But even now, it is not too late for the appellant and the respondent to calmly think about it, reunite and lead a peaceful life since there are no irreconcilable differences between the appellant and the respondent. Therefore, we hope and believe that the appellant and the respondent and more particularly the parents of the appellant will take sincere steps for their reunion.

  • The respondent / wife had not deserted the appellant / husband as observed by the Court below. Therefore, the respondent / wife is entitled for the relief of Restitution of Conjugal Rights and accordingly, the order and decretal order of the Family Court, dismissing O.P.No.2268 of 2007, is set-aside.

  • For the aforesaid reasons, CMA Nos.902 and 903 of 2010 filed by the respondent / wife stand allowed and CMA No.2407 of 2010 filed by the appellant / husband stands dismissed. However, there will be no order as to costs. Connected M.P. is closed.

    (K.M.J.,) (G.M.A.J.,)

    27.02.2012

    Index : Yes / No

    Internet : Yes / No

    srk

    Office to note.: Issue order copy on or before 05.03.2012

    K.MOHAN RAM J.,
    and G.M.AKBAR ALI, J.,

    srk/rnb

    To
    1. Principal Family Court, Chennai,

    Pre-Delivery Judgment in
    C.M.A.Nos.902, 903 and 2407 of 2010
    and M.P.No.2 of 2010

    Date : 27.02.2012

    M.P.No.2 of 2010 in CMA No.903 of 2010

    K.MOHAN RAM, J.,
    AND
    G.M.AKBAR ALI, J.,

    Order of the Court was made by K.Mohan Ram, J.,

    After judgment in the appeals was delivered, Mr.Rangarajan, learned counsel for the appellant in C.M.A.No.903 of 2010 submitted that the above petition has been filed for the following reliefs:-
    "….to direct the respondent to pay an amount of Rs.1,00,000/- towards the value of the furniture mentioned in item II and also Rs.10,000/- which was paid by the petitioner’s father at the time of betrothal for dresses and also return of other articles mentioned in item I to the petitioner and to pass such further or other orders as this Hon ‘ble Court may deem fit.

    Schedule of properties

    I item :
    1.Gold chain
    2.Gold bracelet
    3.Diamond ring
    4.Panchapatram Utthranayiam
    5.Cash worth Rs.10,000/- for dresses

    II item :

    1.Wooden diwan cot.
    2.Godrej bero
    3.Dressing table and stool
    4.Two wooden palagai with silver khumi in the corner
    5.one double size duroflex cushion mattress
    6.Four cushion pillows big size"
    and it has to be disposed of.

    1. It has to be pointed out that while arguing the appeals, no submission was made in respect of this petition. Even otherwise, this petition has been filed pending the above appeal and no such relief was sought for before the Family Court in the original petition. Therefore, we are of the considered view that this petition cannot be entertained by this Court at this stage. However, the petitioner is at liberty to seek an appropriate remedy before the appropriate forum by filing an appropriate application.
  • With the above observation, the above petition is dismissed.

  • (K.M.J.,) (G.M.A.J.,)
    27.2.2012
    RS

    M.P.No.2 of 2010 in
    CMA No.903 of 2010

    Pre-Delivery Judgment in
    C.M.A.Nos.902, 903 and 2407 of 2010
    and M.P.No.2 of 2010

    To
    The Hon’ble Mr. Justice K.MOHAN RAM
    and
    The Hon’ble Mr. Justice G.M.AKBAR ALI

    Most Respectfully submitted:

    S.Ramkumar
    /srk

    ******************************************************************

    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS DOT NIC DOT IN SITE

    ******************************************************************

    BONES of women police sub inspector murdered by ILLICIT LOVERBOY being exhumed from river bed based on confessions! Woman sub inspector was married and had children still could NOT forget lover boy ! she started torturing him for marriage, Loverboy who was just 5th standard educated decided to kill her and killed her in 2010

    *********************************
    brief non recourse notes in English followed by detailed news in Tamil
    *******************************

    CHENNAI:

    The Kanchipuram police, who are probing the murder case of sub insp­ector Kalaivani alle­gedly murdered in August 2010 over an illicit affair, dug out a skeleton from the Palar riverbed near Kaveripakkam.

    S Kalaivani, who was attached to the all-women police station at Melmaruvathur, was allegedly kidnapped and murdered by her boyfriend Venkatesan and his two friends on August 26, 2010.

    Kalaivani was married to one Suresh kumar and she had children out of wedlock

    However she had an illicit affair with one Venkatesan

    Madly in love with her illicit loverboy she had completely foresaken her husband. Shocked by here behaviour her husband seems to have pleaded with her and tried to correct her somehoe

    Kalaivani did not agree to live with Suresh kumar

    She was forcing venkatesan to take her out on tours. they went to various places on tour and returned back

    Suresh Kumar, the husband was ready to live with her. He tried his best to bring her back to normal matrimony. He tolerated the wife’s pleasure trips with her loverboy

    Still unable to forget venkaatesan , Kalaivaani started forcing the loverboy  to marry her and take her to other places on pleasure trips

    at one point she started forcing loverboy Venkatesan to marry her

    Venkatesan was NOT ready for marriage.

    He was educated just upto fifth standard. Unable to accede to Kalaivani’s requests, he murdered Kalaivani and buried her body

    The police got a lead in the case when they recovered her bike from a parking lot at Kanchipuram railway station a few days ago. They nabbed Venkatesan from a hideout in Andhra Pradesh, and he is said to have confessed to have murdered Kalaivani.

    Based on his confession, the police removed the sand on the riverbed and recovered the skeleton.

    It was sent to the government hospital in Chengalpattu for autopsy.

    ************************************
    கள்ளக்காதலின் மிச்சம்… 2 ஆண்டுக்கு முன் கொல்லப்பட்ட பெண் எஸ்.ஐ.யின் எலும்புகள் மீட்பு
    ************************************

    Posted by: Sudha Updated: Thursday, July 18, 2013, 10:24 [IST]

    சென்னை:

    உன்னுடன் வந்து விடுகிறேன், என்னை எங்காவது கூட்டிக் கொண்டு போய் வாழு என்று கள்ளக்காதலனை வற்புறுத்தி, அதனால் ஆத்திரமடைந்து அவனால் கொலை செய்து புதைக்கப்பட்ட பெண் சப் இன்ஸ்பெக்டரின் உடல், 2 ஆண்டுகளுக்குப் பிறகு 2 நாள் தேடுதலுக்குப் பின்னர் கண்டுபிடிக்கப்பட்டது.

    மேல்மருவத்தூர் அனைத்து மகளிர் காவல் நிலையத்தில் சப் இன்ஸ்பெக்டராக இருந்தவர் அப்போது 25 வயதான கலைவாணி. இவருக்கு சுரேஷ் குமார் என்ற கணவரும், குழந்தைகளும் உள்ளனர். ஆனால் கள்ளக்காதலில் மூழ்கினார். வெங்கடேசன் என்பவருடன் தனி வாழ்க்கை நடத்த ஆரம்பித்தார். இவர் வக்கீல் குமாஸ்தாவாக இருந்தவர். வெங்கடேசன் மீதான மோகத்தில் சுரேஷ்குமாரை புறக்கணிக்க ஆரம்பித்தார் கலைவாணி.

    மனைவியின் கள்ளக்காதல் சுரேஷ் குமாருக்குத் தெரிய வந்தது. அதிர்ந்தார். மேலும் மீள முடியாத அளவுக்கு அவர் கள்ளக்காதலில் திளைத்திருப்பதையும் அறிந்தார். மனைவியைக் கண்டித்தார். ஆனால் கள்ளக்காதல் கண்ணை மூடியதால் அதை கேட்கவில்லை கலைவாணி. அடிக்கடி லீவு போட்டு விட்டு வெங்கடேசனுடன் பல இடங்களுக்கும் போக ஆரம்பித்தார்.

    ஒரு கட்டத்தில் எனக்கு புருஷன் வேண்டாம், வேலை வேண்டாம், யாரும் வேண்டாம், உன்னுடனேயே வந்து விடுகிறேன், எங்காவது கூட்டிக் கொண்டுபோ என்று வற்புறுத்த ஆரம்பித்தார். இதனால் வெளியூர்களுக்கு டூர் போல போய் வரலாம் என்று அழைத்தார் வெங்கடேசன். இதையடுத்து 10 நாள் லீவு போட்டு விட்டு கிளம்பி விட்டார் கலைவாணி. கொடைக்கானல் உள்ளிட்ட பல ஊர்களுக்குப் போயுள்ளனர். சந்தோஷமாக இருந்துள்ளனர். பின்னர் ஊர் திரும்பினர். ஊர் திரும்பிய பிறகும் கள்ளக்காதலன் நினைவிலேயே இருந்துள்ளார் கலைவாணி. மீண்டும் என்னை கூட்டிக் கொண்டு போ என்று வற்புறுத்த ஆரம்பித்தார்.

    ஆனால் இதை வெங்கடேசன் ஏற்கவில்லை. இந்த நிலையில், கடந்த 2010ம் ஆண்டு ஆகஸ்ட் 26ம் தேதி முதல் கலைவாணியைக் காணவில்லை. இதுகுறித்து சுரேஷ் குமார் போலீஸில் புகார் கொடுத்தார். போலீஸார் விசாரணை நடத்தியும் துப்பு கிடைக்கவில்லை.

    இந்த நிலையில், கடந்த சனிக்கிழமை காஞ்சிபுரம் பழைய ரயில் நிலையத்தை சுற்றி உள்ள பகுதிகளில் பழைய வாகனங்களை போலீசார் அப்புறப்படுத்தினர். அங்கு அனாதையாக நின்ற ஸ்கூட்டி ஒன்றில், 3 ஆண்டுகளுக்கு முன் மாயமான எஸ்ஐ கலைவாணி பெயரில் ஆர்சி புத்தகம் இருந்தது. இதுகுறித்து உடனடியாக மேல்மருவத்தூர் காவல் நிலையத்துக்கு தகவல் கொடுத்தனர். காஞ்சிபுரம் எஸ்பி விஜயகுமார் தலைமையில் மீண்டும் விசாரணை முடுக்கி விடப்பட்டது. கலைவாணியின் செல்போனை மீண்டும் ஆய்வு செய்தபோது, அதில் வெங்கடேசன் சிக்கினார். அவரிடம் விசாரணை நடத்திய போது எஸ்ஐயுடன் கள்ள காதல் வைத்திருந்தேன். திருமணத்திற்கு தொடர்ந்து வற்புறுத்தியதால் கொலை செய்தேன்’ என ஒப்புக் கொண்டார்.

    இதைத் தொடர்ந்து வெங்கடேசன் கைது செய்யப்பட்டார். சடலத்தை மறைக்க உதவியாக இருந்த அவரது நண்பர் சுப்பன் என்பவரையும் போலீசார் கைது செய்தனர். மேலும் கலைவாணியைக் கொலை செய்து புதைக்கப்பட்ட இடத்தைக் கண்டுபிடிக்க வெங்கடேசனை, காவேரிப்பாக்கம் அருகே உள்ள சங்கரம்பாடி பாலாறுக்கு வெங்கடேசனை போலீசார் அழைத்து சென்றனர். பொக்லைன் இயந்திரம் மூலம் சடலத்தை தேடும் பணி நேற்று முன்தினம் தொடங்கியது. ஆனால் உடலோ, எலும்புக் கூடோ எதுவும் கிடைக்கவில்லை. கலைவாணியின் கொலுசு மட்டுமே கிடைத்தது. இதையடுத்து நேற்று மீண்டும் தோண்டும் பணி தொடர்ந்தது. அதில் 2 கை எலும்புகள் கிடைத்தன. பின்னர் மண்டை ஓடு, இடுப்பு எலும்பு, கால் எலும்புகள், கலைவாணியின் மூக்குத்தி, கம்மல் போன்றவை சிக்கின. இதையடுத்து எலும்புக் கூடுகளை தடயவியல் சோதனைக்கு போலீஸார் அனுப்பி வைத்தனர். மேலும் டிஎன்ஏ சோதனை நடத்தவும் திட்டமிடப்பட்டுள்ளது.

    இந்த நிலையில் வெங்கடேசன் குறித்த மேலும் பல தகவல்களும் போலீஸாருக்குக் கிடைத்துள்ளன. அவர் வெறும் 5ம் வரைதான் படித்துள்ளார். வக்கீல் குமாஸ்தா என்று மோசடியாக செயல்பட்டுள்ளார்.

    மனைவியின் கள்ளக்காதல் தெரிந்தும் கூட குழந்தைகளுக்காக அவருடன் சேர்ந்து வாழ்ந்து வந்துள்ளார் சுரேஷ்குமார். மனைவி செய்த தவறுகளைத் திருத்தப் பார்த்துள்ளார். ஆனால் அவரை மீறிப் போய் விட்டார் கலைவாணி. அப்படியும் கூட மனைவியை விட்டுப் பிரியாமல் குழந்தைகளுக்காக உடன் இருந்து வந்துள்ளார் சுரேஷ் குமார். ஆனால் ஒரு கட்டத்தில் அவரால் தனது மனைவியைக் கட்டுப்படுத்த முடியவில்லை.

    இந்த நிலையில்தான் தடம் மாறி கள்ளக்காதலன் பக்கம் முழுமையாக சாய்ந்துள்ளார் கலைவாணி. கடைசியில் உயிரை விட்டுள்ளார்.

    Read more at: http://tamil.oneindia.in/news/2013/07/18/tamilnadu-woman-si-s-skeleton-recovered-179349.html

    IF you beget a son ur liberty &property will be taken away! 498a hit aged parents run around courts for passport & medical travel abroad. sad state of matrimony in India where parents liberty AND now property can be taken away just at the stroke of a pen …NAY the ablaa naari wife making a phone call to the all woman’s police station and alleging that she has a dowry case !!!! THIS IS nothing but elder abuse to the core !!

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    Important learning
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    * senior citizens aged 70 etc run around court to get a passport
    * their ablaa naari daughter in law has filed 498a against them and so they are denied passports
    * faced with serious medical problems they wish to travel abroad for treatment
    * passport authority refuses passport
    * elderly parents run to HC to get passport
    * HC clarifies that the passport authority should expeditiously clear the application
    * HC clarifies that the passport authority should have considered the GOI notification dated 25th august 1993 !!
    * a notification has been issued by the Ministry of External Affairs, New Delhi dated 25th August, 1993
    * in the notification the "…..Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal Court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of clause (f) of sub section (2) of Section 6 of the said Act. ….." subject to terms and conditions under the act
    * finally the parents are told that they have to get a permission from the magistrate court to get their passports issued !!

    * the whole concept is probably brought to catch hardened criminals involved in heinous crimes , but is now grossly misused against elderly parents

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    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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    CASE FROM JUDIS DOT NIC DOT IN SITE

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    IN THE HIGH COURT OF JUDICATURE AT MADRAS

    DATED: 26.04.2011

    CORAM :

    THE HON’BLE MR.JUSTICE V.DHANAPALAN

    W.P.Nos.11913 and 11914 of 2010

    SAROJA [ PETITIONER  IN W.P.No.11913/10]
    P.NATESAN [ PETITIONER  IN W.P.No.11914/10]

    Vs

    REGIONAL PASSPORT OFFICER
    FIRST FLOOR,
    CORPORATION COMMERCIAL COMPLEX
    OPP. THANDUMARIAMMAN KOIL
    AVINASHI ROAD
    COIMBATORE 641 018.
    [ RESPONDENT IN BOTH WPs]

    Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus to direct the respondent to issue a passport to the petitioners on their applications dated 09.02.2009.

    For petitioners : Mr.S.Ramasamy, Senior Counsel
    for Ms.D.Anette Fassioms

    For respondent : Mr.O.V.Krishnan

    C O M M O N O R D E R

    Heard Mr.S.Ramasamy, learned Senior counsel for the petitioners and Mr.O.V.Krishnan, learned Central Government Standing Counsel appearing for the respondent.

    2. Since the facts and issues are common in both the writ petitions, they are taken up together and disposed of by a common order.

    3. In these writ petitions, the petitioners, who are wife and husband seek for a direction to the respondent herein to issue Passport to them on their applications dated 09.02.2009.

    4. It is their case that they are senior citizens aged about 59 years and 70 years respectively, residing at Door No.4/521 A, Banger’s Colony, Andavar Nagar, Namakkal District. Both of them have applied for passport on 09.02.2009 before the District Passport Application Collection Centre, Namakkal and they have got their acknowledgement from the Centre. The file number given for Saroja is Z5 00443-09 and for P.Natesan the file number is Z5 00444 09. After giving the applications, they have waited for the police enquiry on the prescribed date given by the Passport authorities. The said enquiry was completed in the month of July 2009. Subsequently, they have enquired personally in the District Passport Cell, Namakkal Collectorate about the status of their passport and the concerned Enquiry Officer, Namakkal Collectorate directed the petitioners to approach the Passport Officer, Coimbatore. In the acknowledgement fee receipt the website www.passport.tn.nic.in was given to check out the status of the passport and accordingly they have attempted to find out the status of their passport, where they could not avail any information thereof. Therefore, they enquired the Passport Enquiry Officer, Coimbatore and it was orally informed to them that in the police verification report, it was stated that a criminal case is pending against them.

    5. According to the petitioners, a criminal case in C.C.No.1 of 2005 has been filed against them under Section 498-A IPC and Section 4 of the Dowry Prohibition Act r/w Section 109 IPC before the learned Judicial Magistrate I, Namakkal, by Tmt.Sasikala, who is their daughter in law, in which they have been arrayed as 3rd and 2nd accused respectively and the same is pending before the concerned Court and they have obtained anticipatory bail from the Principal Sessions Judge, Namakkal in Crl.M.P.No.4406 of 2004.

    6. It is their further case that the petitioner P.Natesan, aged 70 years had underwent surgery for Duodenal Perforation with Peritonitis and even after the surgery, he is having problem in his health and therefore, he has been taking medical treatment periodically for his intestinal problem. Recently, he had undergone a master checkup for his health problems and he was advised by the Doctor to take further medical treatment for his Duodenal Perforation in Malaysia. Therefore, they are in urgent need for Passport to take medical treatment as both of them have to travel to Malaysia and unless the passport is issued to them, they will be put to severe hardship and physical strain. On the other hand, no prejudice would be caused to the respondent. It is their further case that only for the purpose of taking medical treatment they wanted to travel to Malaysia and after the same is completed, they will come back to India. Already they are represented in the criminal case by their advocate who can represent them during their short stay at Malaysia and after their return, they undertake to co.operate for the early conclusion of the trial. Their brief absence from India will not at all hamper the progress of the said criminal case. Therefore, they prayed for a direction to the respondent to issue a temporary passport on their applications to enable them to travel to Malaysia for taking medical treatment for Mr.Natesan (husband).

    7. The petitioners sought for a mandamus to direct the respondent to issue Passport on the following grounds:-
    (i) their applications are not liable to be refused on the ground of pendency of a criminal case and the authorities cannot reject the same mechanically on that ground;

    (ii) the authority has failed to consider the notification dated 25.08.1993 wherein exemption was granted to citizens against whom proceedings in respect of an alleged offence are pending before the criminal Court in India and they ought to have directed the petitioners to produce necessary orders from the concerned Court;

    (iii) Their fundamental right under Article 21 of the Constitution is violated as their applications are kept pending for such a long time without any intimation to the petitioners.

    8. The petitioners also sought for the above mandamus as there is no provision in the Passport Act to reject their applications merely on the ground of pendency of a criminal case.

    9. In addition to the above pleadings, the petitioners have filed additional affidavits to the effect that they are citizens of India, a native of Namakkal District, Tamil Nadu.

    10. The respondent has filed separate counter affidavits in both the writ petitions.

    (i) In W.P.No.11913 of 2010, it is stated that the applicant has made an application for Passport to the District Passport Cell, Collectorate, Namakkal and her File No. is Z5-00443-09 dated 09.02.2009; it is the duty of the District Passport cell to collect the passport application and to forward the same to the passport Office at Coimbatore; the petitioner has suppressed the fact in her application that a criminal case is pending against her; these facts were not mentioned in her application at the time of submission as well as in the letter dated 14.09.2009; the petitioner is fully aware of the case and has been informed of the query vide this office letter dated 04.09.2009; the petitioner’s application for the passport has not been rejected and the passport can be issued only on a decision of this Court.

    (ii) Similarly in W.P.No.11914 of 2010, it is stated that the applicant has made an application for Passport to the District Passport Cell, Collectorate, Namakkal and his File No. is Z5-00444-09 dated 09.02.2009; it is the duty of the District Passport cell to collect the passport application and to forward the same to the passport Office at Coimbatore and they have no facility to inform the status of the application. According to them the petitioner’s application for passport is not rejected by the concerned office; the petitioner has suppressed the fact in his application about the pendency of the criminal case; these facts were not mentioned in her application at the time of submission as well as in the letter dated 14.09.2009; the petitioner is fully aware of the case and has been informed of the query vide this office letter dated 04.09.2009. It is the stand of the respondent that the petitioner’s application for the passport has not been rejected and the passport can be issued only on a decision of this Court and therefore the respondent pray for dismissal of the writ petitions.

    11. Mr.S.Ramasamy, learned Senior Counsel appearing for the petitioners in his submissions has strenuously contended that the petitioners right for obtaining passport has to be considered by the authorities in accordance with law, otherwise their personal liberty will be deprived of. He would further contend that the authority has not taken note of the notification dated 25.08.1993 wherein exemption was granted to the citizens against whom proceedings in respect of an alleged offence are pending before the criminal Court in India and they ought to have directed the petitioners to produce necessary order from the concerned court. On the contrary, the respondent is keeping the matter pending without processing, which would violate the right guaranteed under Article 21 of the Constitution of India.

    12. The learned Senior counsel for the petitioners has relied on the following:

    (a) a Division Bench decision of the Punjab and Haryana High Court reported in (2005) 139 PLR 346 in the case of Balwinder Singh vs. The Union of India.

    "8. In the circumstances afore-noticed. We are of the considered view that respondents must deal with and dispose of such matters expeditiously and not make futile attempts to shift their responsibility to the other wings of the State. The police should equally be responsible and act with urgency in such matters and not remain unresponsive or delay the matters for a considerable time, that too without any justification or cause. Reference can also be made to another Judgment of this Court in the case of Manjit Singh v. Union of India and Ors. CWP No.4073 of 2003, decided on 20.05.2004, wherein it was held as under:-

    "One of the basic obligation of a welfare State is to prevent unnecessary litigations in courts. The administrative procedure should be mutable to the fact of the changing demands of the public so as to tackle the pervasive difficulties in effective implementation of its scheme and statutory duties. The circumstances afore noticed compel us to observe that all is not well in the affairs of the concerned departments and requires immediate attention of the higher authorities. The higher authorities are most competent to examine their procedures and issue such directions which would serve as linchpin to the proper administration and functioning of the departments concerned. Thus we direct the Secretary, Ministry of External Affairs, Govt. of India, New Delhi as well as the Director General of Police for such directions as they deem necessary to ensure that the applications submitted by the public at large for issuance of passport in accordance with the provisions of the Act are dealt with and disposed of finally expeditiously and preferably within a time bound programme. The authorities must advert themselves also to the fact that the police should apply its mind and make correct reports to the passport authority on the record available with the department. The applications should be processed properly and final orders granting the passport or declining the request for issuance of the passport upon due application of mind should be passed by the passport authorities. Orders so passed, essentially must be conveyed to the applicant. Such directions and or instructions must be issued by the concerned authorities at the earliest".

    9. In view of the above reasoning, we allow this writ petition to the limited extent that respondents shall consider the application of the petitioner for issuance of passport and dispose of the same within a period of three months from the date a certified copy of this order is brought to their notice. We further make it clear that the respondents shall issue passport to the petitioner provided he places on record the permission from the Court of competent jurisdiction wherein the proceedings in relation to FIR No.273 afore-referred are pending. The petition is, accordingly, disposed of in the above terms, leaving the parties to bear their own costs".

    (b) a decision of the Andhra Pradesh High Court reported in CDJ 2010 APHC 571 in the case of Smt.Deepa Paresh Chedda Vs. The Secretary to Government, External Affairs, Government of India.

    "11. It is evident from the notification dated 25th August, 1993, an applicant against whom a criminal case is pending, is required to obtain necessary permission from the Criminal Court and then make an application to the passport authority. Indisputably, the petitioner is an accused in Case No.Rc.No.3/E/99 BS & FC/CB/New Delhi in which case, the petitioner has to obtain necessary permission from the Criminal Court and thereafter, make an application to the 2nd respondent. As on this day, the petitioner has not obtained any permission from the Criminal Court so as to enable her to get the passport renewed.

    12. Accordingly, the Writ Petition is disposed of directing the petitioner to obtain necessary permission from the Criminal Court as provided in the notification dated 25th August, 1993, and then make an application to the 2nd respondent for renewal of her passport. In the event of submitting necessary application after obtaining necessary permission from the Criminal Court, the 2nd respondent has to consider the same and pass appropriate orders within four weeks from the date of receipt of such an application. No costs".

    13. Per contra, the learned counsel for the respondent would contend that the petitioners applications for Passport have not been rejected and only because of the non mentioning of the pendency of the criminal case in the applications, they could not process the applications for issuance of the passport. If the petitioners obtain necessary permission from the concerned Court and produce the same, the respondent may process the applications for issuance of passport to the petitioners.

    14. On the above background pleadings and the submissions made, I have heard the learned counsel for the parties and perused the material documents and the relevant provision of law.

    15. Admittedly, the petitioners are the senior citizens aged about 59 years an 70 years respectively and they are the citizens of India residing at Door No.4/521 A, Banger’s Colony, Andavar Nagar, Namakkal District. They have applied for the passport on 09.02.2009 before the District Passport Application Collection Centre, Namakkal and their file numbers are Z5 00443-09 and Z5 00444 09 respectively and the same were forwarded to the respondent Passport Officer at Coimbatore. It is seen that the respondent, after receipt of the applications has issued acknowledgments to the petitioners and thereafter they have conducted enquiry in the month of July 2009. However, the passports were not issued to them.

    16. It is the case of the respondent that the petitioners are accused in the criminal case in C.C.No.1 of 2005, which came to the notice of the authorities concerned during the enquiry. In fact the said case has been filed by their daughter-in-law Tmt.Sasikala, under Section 498-A IPC and Section 4 of the Dowry Prohibition Act r/w Section 109 IPC before the learned Judicial Magistrate I, Namakkal, and the same is pending before the concerned Court. It is seen that the petitioners have obtained anticipatory bail from the Principal Sessions Judge, Namakkal in Crl.M.P.No.4406 of 2004. However, due to their ignorance, the petitioners have not filled in their applications about the pendency of the criminal case while applying to the authorities. They pleaded that the purpose of the passport sought to be applied is only to go to Malaysia for medical treatment as per the advise of the Doctor. It is their case that the husband P.Natesan, aged 70 years had underwent surgery for Duodenal Perforation with Peritonitis and even after the surgery, he is having problem and therefore to take further medical treatment for his Duodenal Perforation in Malaysia, they have applied for the Passport and once the treatment is completed, they will come back to India. In the affidavits of the petitioners, it is specifically averred that already they are represented in the criminal case by their advocate, who can represent on behalf of them during their short stay at Malaysia and after their return, they undertake to co.operate for the early conclusion of the trial and their brief absence from India will not at all hamper the progress of the said criminal case.

    17. Clause (f) of sub-section (2) of Section 6 of the Passports Act, 1967 (hereinafter referred to as Act) empowers the Passport authority to refuse to issue a passport or travel documents for going abroad in the event the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal Court in India.

    18. At this juncture, it is worthwhile to refer to the notification relied on by the learned Senior Counsel for the petitioners issued by the Ministry of External Affairs, New Delhi dated 25th August, 1993 in GSR 570(E).

    The relevant extract of the notification reads thus:-

    "No, GSR 570(E) In exercise of the powers conferred by clause (1) of Section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No.G.S.R.(E), dated the 14th April, 1970, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal Court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of clause (f) of sub section (2) of Section 6 of the said Act. Subject to the following conditions, namely;-

    (a) the passport to be issued to every such citizen shall be issued –

    (i) for the period specified in order of the court referred to above, if the court specified a period for which the passport has to be issued; or

    (ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year;

    (iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year; or

    (iv) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.

    (b) any passport issued in terms of (a)(i) and (a)(n) can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified;

    (c) any passport issued in terms of (a)(i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;

    (d) the Laid citizen shall given an undertaking in writing to the passport issuing authority that he shall, if required by the Court concerned, appear before it at any time during the continuance in force of the passport so issued".

    19. From the above provision, it is made clear that the authority is having power to refuse to issue Passport to an applicant if there is any proceeding in respect of an offence alleged to have been committed by him are pending before a criminal Court in India. However, the above notification issued in furtherance of clause (f) of sub-section (2) of Section 6 of the Act clarified the position that the Central Government is of the opinion in public interest to exempt citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal Court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the above provisions.

    20. This legal position as clarified by the Central Government would make it clear that when the applicant produces orders from the court concerned giving permission to depart from India, the authority competent to issue passport can consider the application in accordance with law.

    21. The law is well settled after the decision of the Supreme Court in the case of Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248. In the said case it was held that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some such freedom has been raised to the level of fundamental right. Therefore, while holding that to travel abroad was a fundamental protection available to a person, the Supreme Court accepted the applicability of principle of reasonableness in placing certain restriction under the due process of law including Section 10(3)(c) of the Act. Of course, it was subjected to the basic rule of law of Audi Alteram Partem. The provision under Section clause (f) of sub-section (2) of Section 6 of the Act does not offend the constitutional mandate in any way. It also does not vest the authorities with arbitrary exercise of power. The Pendency of a case before the criminal Court, seen in the light of police report, would be a sufficient ground for the authorities to act and in its wisdom even decline issuance of the passport. Exercise of such jurisdiction would hardly be open to judicial review unless such decision was palpably erroneous or was offending the basic rule of law.

    22. In the instant case, the stand taken by the respondent is that the applications for passport have not been rejected, however, in view of pendency of criminal case, the applications of the petitioners are kept pending

    and unless the applicants produce the necessary permission orders from the competent court to depart from India, it is not proper for the authority to consider the applications for issuance of passport.

    23. The learned Senior Counsel appearing for the petitioners would make a plea that the petitioners are prepared to get necessary permission from the competent Judicial Magistrate Court, where the criminal case is pending against them and if such order permitting the petitioners to depart from India is produced before the respondent, the same may be acted upon by the respondent in considering the applications for issuance of passport to the petitioners without any further delay in the matter in order to enable them to travel abroad for treatment. Such a submission of the learned Senior Counsel for the petitioners is not opposed by the learned counsel appearing for the respondent in view of the specific stand made in the counter affidavits stating that the petitioners applications for the passport have not been rejected and the same can be issued only on the decision of this Court. He would also submit that the petitioners will make appropriate applications before the competent Court of jurisdiction for getting necessary order of permission in order to submit the same before the Respondent Passport Office immediately.

    24. In view of the above stated legal position and considering the circumstances, these writ petitions are disposed of with a direction to the respondent to consider and pass appropriate orders on the petitioners applications for issuance of passport, forthwith, taking into account the nature of urgency involved in this matter of taking treatment abroad, if necessary orders from the competent Court are produced by the petitioners to the respondent within a period of four weeks. No costs.

    rg

    To :

    THE REGIONAL PASSPORT OFFICER
    FIRST FLOOR,
    CORPORATION COMMERCIAL COMPLEX
    OPP. THANDUMARIAMMAN KOIL
    AVINASHI ROAD
    COIMBATORE 641 018

    you cry or scream, you don’t get custody ! AND you have to pay because wife has kid’s custody !! SAD SAD SAGA of fathers in India … Husband to pay for kid EVEN if wife earns 85000 pm & Husband doesn’t have a job !! So.. men can hardly ever get custody, and men can hardly ever escape maintenance for kids !!! In this sad tale, As per the husband he does NOT have a permanent job, while to wife is earning 85,000 pm., Husband has filed his income tax return before the family court, still family court has decreed Rs 10,000 p.m. maintenance for the minor kid, etc etc, So … husband runs to HC, tries to get relief , HC refuses relief saying that the family court judgment cannot be set aside an Husband has NOT shown proof that the Family court has NOT considered all facts !!

    Husband to pay for kid EVEN if wife earns 85000 pm & Husband doesn’t have a job !! So.. men can hardly ever get custody, and men can hardly ever escape maintenance for kids !!! In this sad tale, As per the husband he does NOT have a permanent job, while to wife is earning 85,000 pm., Husband has filed his income tax return before the family court, still family court has decreed Rs 10,000 p.m. maintenance for the minor kid, etc etc, So … husband runs to HC, tries to get relief , HC refuses relief saying that the family court judgment cannot be set aside an Husband has NOT shown proof that the Family court has NOT considered all facts !!

    ******************************************************************

    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

    ******************************************************************

    CASE FROM JUDIS DOT NIC DOT IN SITE

    ******************************************************************

    IN THE HIGH COURT OF JUDICATURE AT MADRAS

    DATE: 07-04-2010

    CORAM

    THE HONOURABLE MR.JUSTICE M.JAICHANDREN

    C.R.P.(PD) No.675 of 2010

    Karthik … Petitioner/Respondent
    Petitioner

    Versus

    Minor K.Keerthana
    Represented by Mother & Guardian
    Narayanee alias Krithika … Respondent/Petitioner
    Respondent

    Prayer: Petition filed under Article 227 of the Constitution of India praying to set aside the order and decree passed in I.A.No.3091 of 2009 in O.P.No.383 of 2007 dated 10.02.2010 on the file of the Principal Family Court, Chennai.

    For Petitioner : Mr.C.Ravichandran
    For Respondent : Ms.K.Santhakumari

    O R D E R

    This Civil Revision Petition has been filed against the order, dated 10.02.2010, made in I.A.NO.3091 of 2009, in O.P.No.383 of 2007, on the file of the Principal Family Court, Chennai.

    2.The petitioner had filed the original petition, in O.P.No.383 of 2007, on the file of the Principal Family Court, Chennai, for a decree of divorce, dissolving the marriage solemnized between the petitioner and his wife Narayanee @ Kritika, on 20.05.2005, at Chennai, on the ground of cruelty. During the pendency of the Original Petition filed by the petitioner, the petitioners wife Narayanee @ Kritika had filed an Interlocutary Application, in I.A.No.3091 of 2009, to direct the petitioner husband to pay a sum of Rs.15,000/-, per month, as maintenance, to the petitioners minor daughter, Keerthana. By an order, dated 10.02.2010, the Principal Family Court, Chennai, had directed the petitioner to pay Rs.10,000/-, per month, towards the maintenance of the minor child, Keerthana, from the date of the petition, till the disposal of the original petition.

    3. Aggrieved by the said order, the petitioner has preferred the present Civil Revision Petition before this Court, under Article 227 of the Constitution of India.

    4.The learned counsel appearing on behalf of the petitioner has stated that the order of the Principal Family Court, Chennai, dated 10.02.2010, made in I.A.NO.3091 of 2009, is erroneous and illegal. The learned Principal Judge had failed to appreciate the fact that the wife of the petitioner, Narayanee @ Kritika, had suppressed her independent income, while praying for an order of interim maintenance. Further, the learned Judge, ought to have appreciated the settled legal position that an employed wife, having an independent source of income, cannot maintain an application for interim maintenance, either for herself or for her minor child. The interlocutory application for maintenance had been filed by the wife of the petitioner, only with the malafide intention of harassing the petitioner and to drag on the proceedings, in the original petition, pending on the file of Principal Family Court, Chennai. The learned Judge had failed to take into consideration the undertaking given by the petitioner that he is ready and willing to take custody of the minor child.

    5.The learned counsel for the petitioner had also stated that the petitioner is not employed on regular basis as he is only working in leave vacancies, arising out of unforeseen leave of the employees, in the project work carried out by the companies. The learned Judge of the Principal Family Court, Chennai, ought to have taken into consideration that the wife of the petitioner has been earning an amount of Rs.85,000/-, per month.

    6.The learned counsel appearing on behalf of the respondent had submitted that the Principal Family Court, Chennai, by its order, dated 10.02.2010, had directed the petitioner to pay a sum of Rs.10,000/-, per month, as maintenance, only to his minor child, Keerthana, the respondent herein and not for his wife. Further, the petitioner had not filed any application for the custody of his minor child, Keerthana, nor had he filed a petition for visitation rights. Once the petitioner is found to be an abled bodied person,he is bound to pay the maintenance to his minor child, as held in Rousseau Mitra Vs. Chandana Mitra (Shrimati), II (2004) DMC 735 and in N.Sree Ramudu Vs. N.Lahari, I (2005) DMC 566.

    7. In reply, the learned counsel appearing on behalf of the petitioner had submitted that, inspite of the petitioner filing his income tax returns showing his gross total income, the learned judge, Principal Family court,Chennai, had not considered the same, before passing the order, dated 10.02.2010, in I.A.No.3091 of 2009. He had stated the claim of the wife, for alimony, should be rejected if she has an independent source of income. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions.

    1.Kumaresan Vs. Aswathi 2002-3-L.W.594

    2.Manokaran alias Ramamoorthy Vs.M.Devaki AIR 2003 MADRAS 212

    3.Amutha @ Symaladevi Vs. K.Thirumoorthy @ Thirumalaisamy (2009) 7 MLJ 1050

    7. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by the learned Judge, Principal Family Court, Chennai, dated, 10.02.2010, may be setaside and the learned Judge may be directed to dispose of the Interlocutory Application, in I.A.No.3091 of 2009, taking into consideration, the income tax returns of the petitioner.

    8. In view of the submissions made on behalf of the petitioner, as well as the respondent, and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the order passed by the Principal Family Court, Chennai, on 10.02.2010, in I.A.No.3091 of 2009, in O.P.No.383 of 2007. There is nothing shown on behalf of the petitioner, for this Court to come to the conclusion that the order passed by the learned Judge, Principal Family Court, Chennai, is arbitrary, erroneous and illegal. Sufficient evidence was available for the Principal Family Court, Chennai, to come to its conclusion that the petitioner is liable to pay Rs.10,000/-, as maintenance, to his minor daughter, Keerthana. Even if it could be shown that the income tax returns of the petitioner had been filed before the Principal Family Court, Chennai, at the time of the filing of the Interlocutory Application, in I.A.No.3091 of 2009,the petitioner has not been in a position to substantiate his claim that they had not been taken into consideration before the order, dated 10.02.2010, had been passed. As such this Civil revision Petition is devoid of merits and therefore, it is liable to be dismissed. Hence, this Civil Revision Petition is dismissed. No costs.

    Consequently, connected Miscellaneous Petition is closed.

    arr

    To
    The Principal Family Court,
    Chennai

    Father/ hubby gets minor daughter custody EVEN after wife’s incriminating suicide note & FATHER / hubby having married II time!! MADRAS HC Gem. Marriage in 2002. Two minor children out of wedlock one son and a daughter. Wife commits suicide and is said to have left an incriminating suicide note against husband and wife / mother says in her suicide note that children to be brought up by maternal grandfather and maternal uncle . Father approaches HC. PAternal father in law also approaches HC and opposes father’s / husband’s petition. Still, HC hands over minor daughter to father . Interests of child Paramount , Minor daughter entitled to brotherly love and fatherly care, says the Honourable Madras HC.

    Father/ hubby gets minor daughter custody EVEN after wife’s incriminating suicide note & FATHER / hubby having married II time!!

    MADRAS HC Gem.

    Marriage in 2002. Two minor children out of wedlock one son and a daughter. Wife commits suicide and is said to have left an incriminating suicide note against husband and wife / mother says in her suicide note that children to be brought up by maternal grandfather and maternal uncle . Father approaches HC. PAternal father in law also approaches HC and opposes father’s / husband’s petition.

    Still, HC hands over minor daughter to father . Interests of child Paramount , Minor daughter entitled to brotherly love and fatherly care, says the Honourable Madras HC.

    Also a lot of discussion on whether the concurrent jurisdiction of the HC is ousted by virtue of the Family court’s act !!

    Super judgment !!

    However please note that NO criminal case seems to have been filed against the husband and SO the maternal grand father is NOT on a strong footing

    ******************************************************************

    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

    ******************************************************************

    CASE FROM JUDIS DOT NIC DOT IN SITE

    ******************************************************************

    IN THE HIGH COURT OF JUDICATURE AT MADRAS

    DATED : 20.04.2010

    Coram: THE HON’BLE Ms.JUSTICE R.MALA

    Application Nos.692 and 641 of 2010 in O.P.No.637 of 2009

    R.MALA,J

    In O.P.No.637 of 2009, the petitioner-K.Srinivasan is the father of the minor child C.S.Shruthi and the respondent-G.Raja is the maternal grandfather of the minor child C.S.Shruthi. For the purpose of convenience, the parties are referred to as they are ranked in O.P.No.637 of 2009.

    2. The petitioner-father of the minor child C.S.Shruthi, has come forward with Original Petition No.637 of 2009 under Section 25 of the Guardians and Wards Act, for the custody of his minor child C.S.Shruthi, aged about 3 years, to him, against the respondent-father-in-law, who is none other than the maternal grandfather of the minor child Shruthi.

    3. During the pendency of O.P.No.637 of 2009, the petitioner has come forward with Application No.692 of 2010 for the interim custody of the minor child Shruthi, pending disposal of the main O.P.No.637 of 2009, stating that his wife Chitralekha died on 24.1.2007 after the minor child Shruthi was born on 25.12.2006 and the minor child Shruthi is in the custody of the respondent, who is none other than the maternal grandfather of the minor C.S.Shruthi. The petitioner wanted to admit his minor child Shruthi in L.K.G. in S.B.O.A. School at Anna Nagar, Chennai, that he submitted application form, dated 17.1.2010, for the admission in the School, that he received communication from the School, directing the petitioner to be present along with his minor daughter C.S.Shruthi in connection with the admission, on 30.1.2010, but when the petitioner informed the respondent over phone about the admission process in S.B.O.A. School, the respondent refused to come to the School with the child. So, he made a request to the School Management to give some more time to bring the child in connection with her admission. For the welfare of the minor child to admit in the School, it is absolutely necessary to give interim custody of the minor child. Hence, the petitioner has come forward with Application No.692 of 2010 seeking for interim custody of the minor child.

    4. The gist and essence of the counter affidavit filed by the respondent in Application No.692 of 2010, are as follows:

    (a) Due to ill-treatment and cruelty committed by the petitioner to his wife, she was forced to end her life on 24.1.2007 and she has left behind her a detailed letter in the form of suicide note, wherein, she has castigated the conduct of the petitioner and his family members, which forced her to resort to the extreme step of committing suicide. In the suicide note, she has clearly stated that her two minor children, namely C.S.Sabareesh and C.S.Shruthi should be brought up and educated by the respondent and his son Sathishkumar Raja, who is employed as a Software Engineer. After the death of the daughter of the respondent, the children were taken care of by the family members of the respondent. By playing fraud upon the respondent, and under the garb of education, the petitioner has retained the custody of the minor child C.S.Sabareesh and now, he is adopting the same method for wresting the custody of the minor child C.S.Shruthi.

    (b) It is further stated by the respondent that he admitted the minor child Shruthi in Pre-K.G. in Tagore Vidyalaya and he applied for L.K.G. admission in three reputed institutions which are located near his residence. The petitioner telephonically threatened the respondent that unless he parted with the custody of the minor child, the respondent and his family members will have to face dire consequences at his hands.

    (c) It is further stated that the respondent filed a guardian O.P. in G.W.O.P.No.4123 of 2009 before the Principal Family Court, Chennai, for appointing the respondent and his son Sathishkumar Raja as joint Guardians for both the minor children. It is further stated that the respondent and his son, have filed another application in A.No.641 of 2010 before this Court, for transferring the present O.P.No.637 of 2009 to the file of the Principal Family Court, Chennai, for being tried along with G.W.O.P.No.4123 of 2009.

    (d) The respondent further states that the petitioner has contracted second marriage with one Priya and it would not be safe to grant the interim custody of the minor C.S.Shruthi to him. The petitioner is not in a position to look after the minor female child. The respondent is ready to provide decent education to the minor C.S.Shruthi. The respondent prays for dismissal of Application No.692 of 2010.

    5. The gist and essence of the application in A.No.641 of 2010, filed by the respondent, i.e. the father-in-law of the petitioner and his son Satishkumar Raja, seeking for transfer of the present O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial along with the Guardian O.P. in G.W.O.P.No.4123 of 2009, pending on the file of the Principal Family Court, Chennai, are as follows:

    The marriage between the petitioner and the respondent’s daughter R.Chitralekha took place on 1.2.2002 and out of their wedlock, she gave birth to two children, viz., son C.S.Sabareesh and daughter C.S.Shruthi, born on 2.11.2004 and 25.12.2006 respectively. It is further stated that unable to bear the ill-treatment by the petitioner-husband, the respondent’s daughter committed suicide. The children are in the custody of the respondent-grandfather. The petitioner-husband contracted second marriage. The respondent and his son Sathishkumar Raja filed G.W.O.P.No.4123 of 2009 for appointing them as joint Guardians to the abovesaid minor children. As per Section 15 of C.P.C., every suit shall be instituted in the Court of the lowest grade and hence, the respondent-grandfather wants to transfer the main O.P.No.637 of 2009 pending before this Court, to the Principal Family Court, Chennai, for avoiding multiplicity of proceedings.

    6. Heard both sides.

    7. The father of the minor child Shruthi is the petitioner in O.P.No.637 of 2009 and the maternal grandfather of the minor child Shruthi is the respondent in O.P.No.637 of 2009. The marriage between the petitioner K.Srinivasan and K.Chitralekha, the daughter of the respondent, is admitted. The paternity and maternity of the minor children Shruthi and Sabareesh, are admitted. Admittedly, the minor Sabareesh is in the custody of his father, the petitioner-K.Srinivasan. The petitioner-K.Srinivasan has come forward with the main O.P.No.637 of 2009 before this Court, seeking for the custody of the minor child Shruthi, aged about 3 years, stating that the child was born on 25.12.2006 and the mother died on 24.1.2007. From the date of the birth of the minor child Shruthi, she has been in the custody of her maternal grandparents. The petitioner-father wanted to admit the minor child Shruthi in S.B.O.A. School at Anna Nagar, Chennai, and hence, he wanted interim custody of the minor child Shruthi, as he has to pursue the admission process in the said School.

    8. Repudiating the said contentions, the respondent-grandfather stated that from the date of the birth of the minor child Shruthi, she is with him and that he is having financial status to give good education to her. Furthermore, the respondent-grandfather submits that the petitioner-father contracted second marriage. The respondent-grandfather prayed for dismissal of A.No.692 of 2010. The respondent-grandfather further stated that he has already filed petition before the Principal Family Court, Chennai, for appointing himself and his son Sathishkumar Raja, as joint guardians in G.W.O.P.No.4123 of 2009. Hence, the respondent-grandfather prayed for transferring O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, instead of deciding the interim custody application in A.No.692 of 2010.

    9. Learned counsel for the petitioner would submit that the petitioner-Srinivasan is the father of the minor child and he is employed in Wheels India Limited, Padi, Chennai, as Manager (MFG) his net pay is Rs.51,747/- p.m. and he is also having monthly rental income to the tune of Rs.10,000/-. He is having his mother and second wife to look after the child and so, considering the welfare of the child and as the education of the child is very important, the petitioner is seeking for admission in well reputed School, i.e. S.B.O.A. School, in Anna Nagar, Chennai. The petitioner prays for interim custody of the minor child Shruthi. Learned counsel for the petitioner further submitted that the transfer application in A.No.641 of 2010, filed by the respondent-father-in-law, is not maintainable, because, as per Clause 17 of the Letters Patent of the Madras High Court, Order 21 of the Original Side Rules of the Madras High Court and Section 4(4) of the Guardians and Wards Act, this Court has concurrent jurisdiction, along with District/Family Court, to entertain a petition for the custody of the minor child. Learned counsel for the petitioner relied upon a Full Bench decision of this Court reported in AIR 1990 Madras 100 (Mary Thomas Vs. K.E.Thomas), stating that even after the enactment of the Family Courts Act and the constitution of the Family Courts, the jurisdiction of the High Court is not ousted and hence, this Court has concurrent jurisdiction to decide the matter. Learned counsel for the petitioner-father prayed for dismissal of the transfer application in A.No.641 of 2010 and prayed for interim custody of his minor child Shruthi.

    10. Repudiating the said contentions, learned counsel for the respondent-grandfather would submit that because of the attitude of the petitioner-husband, the respondent’s daughter Chitralekha committed suicide and from the date of the birth of the minor child Shruthi, she is with the respondent-grandfather and he has also taken steps for giving good education and even sought to obtain admission in C.S.I. Bain School, Kilpauk, Chennai, that the child is with the grandparents, and if the child is given interim custody, the welfare of the child will be deprecated. Learned counsel for the respondent-grandfather further submits that the main relief in the O.P. is for the custody of the minor child and if the interim custody is ordered, the relief sought for in the main O.P.No.637 of 2009 will be fulfilled and hence, he prayed for dismissal of the application seeking for interim custody of the minor child. Learned counsel for the respondent-grandfather further submitted that the grandfather has already filed Guardian O.P. before the Principal Family Court, Chennai, in G.W.O.P.No.4123 of 2009 for appointing himself and his son Sathishkumar Raja as joint Guardians for both the minor children Sabareesh and Shruthi, and the said petition is pending. As per Section 15 C.P.C., the petitioner-father ought to have filed a petition before the lower forum. Learned counsel for the respondent-grandfather prayed for transferring the main O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial with G.W.O.P.No.4123 of 2009, to avoid multiplicity of proceedings and conflict of decisions.

    11. Now, it has to be decided as to whether this Court has jurisdiction to entertain O.P.No.637 of 2009 and the other applications filed by the respective parties.

    12. The respondent-grandfather has filed A.No.641 of 2010 for transferring O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial with Guardian O.P. in G.W.O.P.No.4123 of 2009, pending before the Principal Family Court, Chennai, stating that after the enactment of the Family Courts Act and the constitution of the Family Courts, even though the High Court is having jurisdiction to entertain the main O.P., as per Section 15 C.P.C., the party must seek for remedy only before the lowest forum.

    13. At this juncture, it is appropriate to extract Section 4(4) of the Guardians and Wards Act, Clause 17 of the Letters Patent of the Madras High Court, Order 21 of the Original Side Rules of the Madras High Court, Section 15 of the Civil Procedure Code and Sections 7 and 8 of the Family Courts Act: Section 4(4) of the Guardians and Wards Act:

    Section 4(4) of the Guardians and Wards Act
    *********************************************************
    Section 4: Definitions.–In this Act, unless there is something repugnant in the subject or context,–
    … …. ….

    (4) "District Court" has the meaning assigned to that expression in the Code of Civil Procedure Code, 1882 and includes a High Court in the exercise of its ordinary original civil jurisdiction."

    Clause 17 of the Letters Patent of the Madras High Court:
    *******************************************************************
    "Clause 17: Jurisdiction as to infants and lunatics.–And We do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these presents."

    "Order 21 of the Original Side Rules of the Madras High Court:
    *******************************************************************
    "Guardians and Wards"

    Rule 1: All proceedings under the Guardians and Wards Act, 1890, in this order called "the said Act" shall be entitled "in the matter of the minor" as in Form No.27.

    "Section 15: Civil Procedure Code:
    *******************************************************************
    Court in which suits to be instituted: Every suit shall be instituted in the Court of the lowest grade competent to try it."

    "Family Courts Act: Chapter III. Jurisdiction:
    *******************************************************************
    Section 7: Jurisdiction.–(1) Subject to the other provisions of this Act, a Family Court shall–

    (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

    (b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

    Explanation.–The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

    (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

    (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

    (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

    (d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship;

    (e) a suit or proceeding for a declaration as to the legitimacy of any person;

    (f) a suit or proceeding for maintenance;

    (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

    (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise,–

    (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

    (b) such other jurisdiction as may be conferred on it by any other enactment.

    Section 8: Exclusion of jurisdiction and pending proceedings.–Where a Family Court has been established for any area,–

    (a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature of referred to in the Explanation to that sub-section;

    (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

    (c) every suit or proceeding of the nature referred to in the explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),–

    (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and

    (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."

    14. Learned counsel for the petitioner-father, relied upon the decision reported in AIR 1990 MADRAS 100 (Mary Thomas Vs. K.E.Thomas), wherein, a Full Bench of this Court held as follows:

    | "5. A reference to certain provisions of the Letters
    | Patent is necessary. Cls.11 to 21 deal with
    | Extraordinary Original Civil Jurisdiction, and
    | Insolvency Jurisdiction; Cls.22 to 30 deal with
    | Criminal Jurisdiction; Cl.31 deals with the exercise
    | of jurisdiction outside the ordinary place where the
    | High Court sits; Cls.32 and 33 deal with Admiralty and
    | Vice-Admiralty Jurisdiction and Cl.34 deals with the
    | Testamentary and Intestate Jurisdiction. The ouster of
    | the jurisdiction exercised by the High Court on its
    | Original Side under the provisions of the Letters
    | Patent cannot be readily inferred unless there is
    | express provision in any enacted law taking away such
    | jurisdiction. Under Art.225 of the Constitution of
    | India the pre-existing jurisdiction of the High Court
    | is preserved subject of course to the provisions of
    | any valid law that may be made. Does the Act contain
    | any provision militating against the exercise of
    | jurisdiction on the Original Side of this Court in
    | respect of matters falling under the Explanation to
    | S.7 of the Act and does the Act contain any express
    | provision taking away such jurisdiction vested in the
    | High Court?"
    |
    | "20. On a consideration of the relevant provisions of
    | law and the decisions which have been cited, we are
    | clearly of the opinion that the jurisdiction of the
    | High Court on its Original Side is not ousted by any
    | of the provisions contained in the Act and the High
    | Court shall continue to exercise the jurisdiction
    | vested in it under the Letters Patent and all other
    | laws, notwithstanding the provisions of S.7 and S.8 of
    | the Act. In this view, therefore, we hold that the
    | decision of Abdul Hadi,J, in Patrick Martin. In the
    | matter of the Minor Rekha (1989) 103 Mad L.W. 241, and
    | confirmed by the Division Bench in O.S.A.No.186 of
    | 1988 and reported in Patrick Martin Mr. Etc.
    | Appellants, (1989) 103 Mad.L.W. 246 : (AIR 1989 MADRAS
    | 231) is no longer good law.
    |
    | 21. We answer the Reference as follows: "After the
    | constitution of the Family Court for the Madras area,
    | the original Jurisdiction of the High Court in respect
    | of matters that may fall under the Explanation to S.7
    | of the Act is not ousted and the High Court can
    | continue to exercise its jurisdiction notwithstanding
    | the coming into force of the Family Courts Act, 1984".

    15. Relying on the said Full Bench decision of this Court, learned counsel for the petitioner-father, argued that the High Court is having concurrent jurisdiction to entertain the case relating to Guardians and Wards Act.

    16. Learned counsel for the respondent-grandfather relied upon the decision reported in AIR 2002 MADRAS 435 (A.V.Arockiam Vs. Arul Mary), in which, this Court held as follows:

    | "32. Thus pursuant to the order of reference by
    | Srinivasan,J, the matter came up before the Full Bench
    | for a verdict on the scope and ambit of Ss.7 and 8 of
    | the Family Courts Act and on the question whether the
    | jurisdiction exercised by the High Court under Letters
    | Patent was in any manner affected by reason of the
    | above said provisions in the Act. As to what the Full
    | Bench held has already been noticed. The Full Bench
    | approved the decision of N.S.Ramaswami,J. in
    | S.P.S.Jayam & Co. Vs. Gopi Chemical Industries India
    | (1977) 1 Mad.L.J. 286 stating that "the term "District
    | Court" occurring in the Trade and Merchandise Marks
    | Act of 1958 would not include the High Court and the
    | fact that the local limits of the ordinary original
    | jurisdiction of this Court is a District would not
    | mean that this Court becomes a District Court and that
    | in suits filed on the Original Side of this Court, it
    | will be the Original Side Rules and the provisions of
    | the Letters Patent that will have application."
    |
    | 33. It does not appear that either before
    | Srinivasan,J, or before the Full Bench, the unreported
    | decisions of Sadasivam,R.,J and Fakkir Mohamed,J, and
    | the reported decisions of V.Sethuraman,J, and
    | R.Sengottuvelan,J, were cited. The speech by the
    | Hon’ble Mr.Maine in the Legislative Council on 26th
    | March, 1869 was also not referred to. Apparently, the
    | various provisions of the Indian Divorce Act, the
    | proviso to Clause 35 of Letters Patent and S.15 of the
    | Code of Civil Procedure were not brought to the notice
    | of the Full Bench. The Full Bench merely stopped
    | saying that the Original Jurisdiction of the High
    | Court in respect of matters that might fall under the
    | Explanation of S.7 of the Family Courts Act was not
    | ousted and the High Court continued to exercise its
    | jurisdiction notwithstanding the coming into force of
    | the said Act.
    |
    | 34. In Civil Reference No.12/91, AIR 1993 Bombay 61 a
    | Special Full Bench of the Bombay High Court held that
    | petitions for dissolution of marriage or nullity of
    | marriage on specific grounds stated in S.19 of the
    | Indian Divorce Act could be entertained both by the
    | District Court and the High Court and that both the
    | Courts had concurrent jurisdiction. The Full Bench
    | drew analogy from the provisions of S.482 of the Code
    | of Criminal Procedure Code where revisional
    | jurisdiction is vested concurrently in the High Court
    | as well as the Sessions Court. The analogy drawn by
    | the Bombay High Court, in my respectful view, cannot
    | be stated to be apposite.
    |
    | 35. There is a provision in the Code of Civil
    | Procedure under S.24 giving general power of transfer
    | and withdrawal both on the District Court and the High
    | Court. But what makes all the difference between the
    | Indian Divorce Act on the one hand and the provisions
    | of the Code of Civil Procedure and the Code of
    | Criminal Procedure on the other is the presence of the
    | expression "as the case may be" in S.3(4) of the
    | Indian Divorce Act. The said expression "as the case
    | may be" would only mean that if the parties last
    | resided together at a particular place, the District
    | Court having jurisdiction over that place would be
    | alone competent to entertain a petition under the
    | Indian Divorce Act. Proviso to Clause 35 of the
    | Amended Letters Patent cannot also be ignored. If the
    | parties resided within the jurisdiction of the High
    | Court, the High Court as also the Family Court would
    | have jurisdiction to entertain the petition. That
    | appears to be the only logical way of looking at this.
    |
    | 36. Be that as it may, S.15 of the Code of Civil
    | Procedure, which is not excluded by S.45 of the Indian
    | Divorce Act clearly enjoins the parties to approach
    | the lowest Court having jurisdiction, for relief,
    | though in view of the Full Bench decision, the High
    | Court has concurrent jurisdiction even if the husband
    | and the wife do not reside or did not last reside
    | together, within the jurisdiction of the High Court.
    | The High Court has also a discretion in such matters.
    | It does not have to entertain them merely because they
    | are presented before it. It is entitled to return them
    | for presentation before proper court or to transfer
    | them to the District Courts or the Family Courts as
    | the case may be.
    |
    | 37. The question for consideration is therefore
    | answered in the following manner:
    |
    | Though, in view of the judgment of the Full Bench in
    | Mary Thomas v. Dr.K.E.Thomas (1989) 104 Mad L.W. 344
    | the High Court may be said to have concurrent
    | jurisdiction, the petitions have to be filed only
    | before the District Courts concerned in view of S.15
    | of the Code of Civil Procedure.
    |
    | 38. In O.M.S.No.24/96 the parties last resided
    | together as husband and wife at No.Panjampatty,
    | Dindigul Taluk, Anna District. Only the petitioner is
    | a resident of Madras and the first respondent is a
    | resident of Dindigul as also the second respondent. In
    | the circumstances, the proper Court to try the case is
    | the Principal District Court, Dindigul. O.M.S.No.24/96
    | therefore will stand transferred to the file of the
    | Principal District Court, Dindigul, for disposal. The
    | parties to appear before that Court on the 10th of
    | June, 2002.
    |
    | 39. The parties in O.M.S.No.7/2001 last resided
    | together at Palaymkottai. Both the petitioner and the
    | respondent live in Palayamkottai as per the petition.
    | The proper Court is the Principal District Court,
    | Tirunelveli. O.M.S.No.7/2001 will stand transferred to
    | the file of the Principal District Court, Tirunelveli,
    | for disposal. The parties to appear before the
    | Principal District Court, Tirunelveli, on 10.6.2002."

    17. The above said citation reported in AIR 2002 Madras 435, is not applicable to the facts of the present case, because, in that decision, the matrimonial cases came to be filed before the High Court and it was held that though the High Court is having concurrent jurisdiction along with the District Court, since the parties lastly resided only in Anna Dindugal District/Tirunelveli District and not within the jurisdiction of the High Court, this Court came to the conclusion that the cases have to be transferred to the Courts where both parties lastly resided together as husband and wife, and as they lastly resided at Panjampatty, Dindigul Taluk, Anna District/Palaymkottai, Tirunelveli District, and in one of the cases, the petitioner therein was a resident at Madras and the first respondent and the second respondent therein were residents of Dindigul and so, the cases were transferred to Principal District Courts, Dindigual/Tirunelveli. But in the case on hand, both the petitioner-father of the minor child and the respondent-grandfather of the minor child, are residing within the jurisdiction of this Court and so, the above citation is not applicable to the facts of the present case.

    18. Moreover, as per the Full Bench decision of this Court reported in AIR 1990 MADRAS 100 (cited supra), this Court has concurrent jurisdiction along with the Family Court after the constitution of the Family Courts under the Family Courts Act.

    19. As already quoted in the earlier paragraph, as per Clause 17 of the Letters Patent of this Court, Order 21 of the Original Side Rules of this Court and Section 4(4) of the Guardians and Wards Act, this Court is having jurisdiction to entertain the main O.P.No.637 of 2009.

    20. It is true that guardian O.P. in G.W.O.P.No.4123 of 2009 has been filed before the Principal Family Court, Chennai, but there is no document to show as to when it was filed and whether it was filed after the filing of the present O.P.No.637 of 2009 or before the filing of the present O.P.No.637 of 2009.

    21. It is true that the present O.P.No.637 of 2009 pending before this Court and G.W.O.P.No.4123 of 2009 pending before the Principal Family Court, Chennai, are to be tried jointly to avoid conflict of decisions and multiplicity of proceedings. But there is no document to show as to when G.W.O.P.No.4123 of 2009, was filed, for deciding whether the same has been filed in the earlier point of time. In the abovesaid circumstances, it is premature to transfer the present O.P.No.637 of 2009.

    22. In such circumstances, there is no need to transfer the main O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai. Hence, A.No.641 of 2010 seeking for transfer of O.P.No.637 of 2009, is liable to be dismissed as devoid of merits.

    23. The marriage between the petitioner-K.Srinivasan and Chitralekha, the daughter of the respondent, is admitted and out of their lawful wedlock, she gave birth to one male child Sabareesh and admittedly, the minor child Sabareesh is now with his father, the petitioner. The second child, minor Shruthi, was born on 25.12.2006, and the mother Chitralekha died on 24.1.2007 in a fire accident. The respondent, the father-in-law of the petitioner, raised a contention that unable to bear the cruelty meted out by her husband, she committed suicide. She has left behind her a suicide note. As per the suicide note, she requested her father and her brother to take care of her children and it is the last will of his deceased daughter and therefore, the respondent-father-in-law does not want to give the custody of the minor grand-daughter Shruthi to the petitioner-father.

    24. Learned counsel for the respondent-grandfather relied on the decision of this Court reported in 1998 (I) M.L.J. 515 (Thirumavalavan Vs. Natarajan), wherein, this Court held as follows:

    | "10. When we compare the handwriting in Ex.R-2 with
    | the admitted handwriting contained in Exs.R-6 to R-8
    | the handwriting is beyond any doubt, in the hand of
    | the deceased. Her last desire is contained in the said
    | letter, the said letter deserves to be treated as a
    | testament. She has signed four times immediately after
    | the completion of the sentence in the letter. That
    | itself is an indication that she wanted that letter to
    | be accepted and acted upon and dispel any doubt about
    | its genuineness. In my view, if anything is done
    | contrary to the last wishes of the deceased, we will
    | fail to satisfy the desires of a departed soul. In
    | such circumstances, we should not harp upon the legal
    | rights conferred upon the father and ignore the
    | sentiments expressed by the mother that too at the
    | time of her suicide. When we consider the welfare of
    | the child also, a female child in the custody of a
    | grand-father or mother would feel better and happier
    | than to in the custody of a step-mother. In my view,
    | when we come across a case like this, we must take
    | note of the traditional proverbial treatment of a step-
    | mother and as far as possible, the court must stretch
    | its arms to prevent the chances for such a treatment.
    | As otherwise, even from the childhood the minor child
    | will begin to experience a frustration and nurture a
    | hatred towards the step-mother and to some extent
    | towards the father, who usually ignores the cry of a
    | minor child for fair treatment at the influence of his
    | second wife. In this case, the respondent has admitted
    | that he has taken a second wife. Further, it is also
    | stated that the second wife has also conceived."

    25. In the present case, the xerox copy of the suicide note of the deceased Chitralekha, has been filed before Court, and whether it was written by the deceased Chitralekha or not, has to be decided only during trial, after letting in oral and documentary evidence, and not at this stage.

    26. Now, it is appropriate to consider the typed set of papers filed by the petitioner-father (husband of the deceased), in which, in page 1, a registered F.I.R. copy is enclosed, in which it was stated it was an "accidental fire" and since she died in fire accident within seven years of the marriage, R.D.O. enquiry was conducted and report of the R.D.O. also finds place in page 3 of the typed set of papers, in which it is stated that the mother of the deceased Chitralekha, i.e. the wife of the respondent-father-in-law deposed in enquiry that both the husband and the wife were living together happily and because of gas leakage, she died. Admittedly, no criminal case has been filed against the petitioner.

    27. Furthermore, during arguments, it was stated that even though she died on 24.1.2007, till the O.P. has been filed before this Court, for the custody of the minor child, the suicide note has not been brought to the notice of anybody. Besides that, both the children were in the custody of the respondent-grandfather and for the purpose of education, the minor son has been handed over to the petitioner-father and now, the minor son is staying with the petitioner-father and the custody of the minor daughter is sought for by the petitioner on the same ground of giving education.

    28. It is also admitted by both sides that the second marriage of the petitioner-K.Srinivasan has been performed with the help of the respondent-father-in-law and their family members. Both the parties are in cordial terms and for submitting the custody of the minor child Shruthi/grand-daughter alone, there is a dint in the minds of both parties.

    29. In this regard, it is appropriate to consider Section 9 of the Guardians and Wards Act, which reads as follows:

    | "Section 9: Court having jurisdiction to entertain
    | application.–
    |
    | (1) If application is with respect to the
    | guardianship of the person of the minor, it shall be
    | made to the District Court having jurisdiction in the
    | place where the minor ordinarily resides.
    |
    | (2) If the application is with respect to the
    | guardianship of the property of the minor, it may be
    | made either to the District Court having jurisdiction
    | in the place where the minor ordinarily resides or to
    | a District Court having jurisdiction in a place where
    | he has property.
    |
    | (3) If an application with respect to the
    | guardianship of the property of a minor is made to a
    | District Court other than that having jurisdiction in
    | the place where the minor ordinarily resides, the
    | Court may return the application if in its opinion the
    | application would be disposed of more justly or
    | conveniently by any other District Court having
    | jurisdiction."

    30. It is true that as per the Guardians and Wards Act, the father is the natural guardian of the minor child Shruthi. The second marriage of the petitioner-father, is not an impediment for having the custody of his minor child Shruthi. The welfare of the minor child is the paramount consideration for giving the custody.

    31. In this regard, it is appropriate to consider the decision reported in 2009 (7) SCC 322 (Anjali Kapoor Vs. Rajiv Baijal), in which the Supreme Court held as follows:

    | "26. Ordinarily, under the Guardian and Wards Act, the
    | natural guardians of the child have the right to the
    | custody of the child, but that right is not absolute
    | and the courts are expected to give paramount
    | consideration to the welfare of the minor child. The
    | child has remained with the appellant grandmother for
    | a long time and is growing up well in an atmosphere
    | which is conducive to its growth. It may not be proper
    | at this stage for diverting the environment to which
    | the child is used to. Therefore, it is desirable to
    | allow the appellant to retain the custody of the child."

    32. While applying the said decision of the Supreme Court to the facts of the present case, as per the typed set of papers filed by the petitioner-father, it is seen that he is working in Wheels India Limited, Padi, Chennai, as Manager (MFG) and his Gross Pay is Rs.58,966.94 p.m. and the deductions are at Rs.7,200.52 and his Net Pay is Rs.51,747/-. It is stated that the petitioner-Srinivasan is having his mother and second wife to maintain.

    33. It is undisputed that welfare and interest of the child is relevant and of paramount consideration in a case of this nature. In the normal course, the father is entitled to the custody of the child. But there are several circumstances, where a departure can be made keeping in view the welfare of the child. As per the dictum of the Supreme Court in the decision reported in AIR 1982 SC 1276 (Thirty Hoshie Dolikuka Vs. Hosham Shavaksha Dolikuka), the Court, while deciding the custody of the child, is to keep all relevant factors in mind and has to find out as to with whom the child would be better off and the matter is to be considered and decided only from that point of view and interest of the minor. In deciding the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest, and has to be guided by the only consideration of welfare of the minor. When the atmosphere in a house is vitiated and rendered surcharged with tension as a result of bitter squabbles between the parties, it causes misery and unhappiness to a child, who has to live in constant psychological strain. The mental and physical growth of the child is bound to be seriously affected under such circumstances.

    34. While applying the said decision of the Supreme Court to the facts of the present case, on hearing the petitioner-father, the two minor children (brother and sister), the respondent-father-in-law, the brother-in-law and the second wife, who were all present before Court, it is to be noticed that both the minor children (brother and sister) were playing with each other and they are in good terms with each other and the minor Shruthi mingled with both the petitioner-father and his relatives and the respondent-grandfather and his relatives, even though she has been continuously residing with the respondent-grandfather, his wife (grandmother) and their son Sathishkumar Raja (uncle) and both the minor children are also in talking terms. Considering the welfare of the minor child, she is entitled to parental care as well as brother-hood. Considering the tender age of both the minor children Sabareesh and Shruthi, it will be better if both of them reside under one roof, which will be very conducive for their future. Even though the minor child Shruthi is now with the respondent-father-in-law of the petitioner, as soon as the minor child Shruthi saw her father and brother (Sabareesh), in the Court, she voluntarily went and played with them.

    35. At this juncture, it is pertinent to note that Sathishkumar Raja, the brother-in-law of the petitioner, i.e. the son of the respondent-father-in-law, also got married now. The respondent-father-in-law is somewhat old person. Even though the respondent-father-in-law stated that he is having financial status, but he has not furnished any materials to show as to what is his financial status and as to how he could bring up the minor child Shruthi. It is well settled principle of law that the second marriage is not an impediment for having the custody of the minor child. Further, this Court, in the decision reported in AIR 2006 Madras 330 (T.Kochappe Vs. R.Sadasivam Pillai), held that the natural guardian of minor children is father, so, only due to the fact that he had married for second time, it would not absolve his right to ask for custody of the children or for appointing him as guardian of the children, more so, when there was nothing on record to show that he had in any way acted against the interest of minors.

    36. As per the dictum of the Supreme Court, the welfare of the minor child is of paramount consideration for handing over the custody of the minor child to the concerned party. In the present case, the battle is between the respondent-father-in-law and the petitioner-son-in-law, i.e. the maternal grandfather and the father of the child. As already discussed in the earlier paragraphs, the eldest child, minor son Sabareesh is studying and he is with his father, the petitioner. The petitioner-father is working as Manager in Wheels India Limited and earning nearly Rs.51,000/- p.m. as net income. As per the dictum of the Supreme Court, the second marriage is not an impediment for having the custody of the minor child.

    37. Even though the minor child Shruthi is with the respondent-grandfather from the date of her birth till today, as soon as she saw her brother Sabareesh and her father (petitioner) in Court, she went and had fun with them and also played with them. In such circumstances, I am of the view that considering the welfare of the minor child, and for giving good education in S.B.O.A. School, Anna Nagar, Chennai, the petitioner-father has been taking all steps for getting admission in the School and in such circumstances, it is appropriate to hand over the interim custody of the minor child Shruthi till the disposal of the main O.P.No.637 of 2009.

    38. Accordingly, the interim custody of the minor child Shruthi has to be given to her father, the petitioner-Srinivasan, for giving good education to her. The petitioner-father, at the time of arguments, stated that he is ready to send the child Shruthi on Friday evenings to the maternal grandfather (the respondent) and on Sunday evenings, he could get back the child for the purpose of sending her to School on Mondays. The respondent (father-in-law of the petitioner and the maternal grandfather of the child), if he wishes, can take the minor child Shruthi on Saturdays and Sundays.

    39. Considering the said aspects, I am of the view that the petitioner-father is entitled to get interim custody of the minor child Shruthi for giving proper education to her, till the disposal of the main O.P.No.637 of 2009 and the same is accordingly granted and the custody of the minor child Shruthi shall be handed over by the respondent-grandfather to the petitioner-father, within one week from today. The petitioner-father shall hand over the minor child Shruthi during holidays, i.e. on Saturdays and Sundays, to her maternal grandparents on every Friday evenings and the petitioner-father shall get back the child from the maternal grandparents every Sunday evenings.

    40. With respect to transfer of O.P.NO.637 of 2009 to the file of the Principal Family Court, Chennai, if necessary, and if the parties wish, on application, the guardian O.P. in G.W.O.P.No.4123 of 2009, shall be transferred to this Court, for being tried along with O.P.No.637 of 2009 and for disposal, in accordance with law.

    41. With the above observations, A.No.692 of 2010 seeking for interim custody of the minor child, is allowed and A.No.641 of 2010, seeking for transfer of O.P., is disposed of.

    20.04.2010

    Index: Yes

    Internet: Yes

    cs

    R.MALA,J

    Judgment in
    A.Nos.692 and 641 of 2010
    in O.P.No.637 of 2009

    20.04.2010