Application of law - Misapplication of Law -Non Application of Law - High court misapplied the law to the set of facts and as such liable to be set aside.
Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
Apex court held that in cases where there has been a long period of continuous separation and the marriage becomes a fiction it would be appropriate to dissolve such marriage.
On the position of law enunciated it would not be necessary to advert indetail inasmuch as the decision to dissolve the marriageapart from the grounds available, will have to be taken oncase to case basis and there cannot be a strait jacket formula.
This Court can in any event exercise the power under Article 142 of the Constitution of India in appropriate cases.
However, in the instant facts, having given our thoughtful consideration to that aspect
we notice that the parties hail from a conservative background where divorce is considered a taboo and further they have a female child born on 03.01.2007 who is presently aged about 13 years.
In a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear andtear of marital life, the future of the child and her marital prospects are also to be kept in view, and in such circumstance the dissolution of marriage merely becausethey have been litigating and they have been residingseparately for quite some time would not be justified inthe present facts, more particularly when the restitution of conjugal rights was also considered simultaneously. In that view, having arrived at the conclusion that the very nature of the substantial questions of law framed by the High Court is not justified and the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside
2020 [3]advocatemmmohan apex court cases 16
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 19121913 OF 2020
(Arising out of SLP (CIVIL) Nos.27042705 of 2019)
Mangayakarasi .…Appellant(s)
Versus
M. Yuvaraj …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2. The appellant is before this Court assailing the
judgment dated 20.07.2018 passed by the High Court of
Judicature at Madras in CMSA Nos.23 & 24 of 2016. The
appellant is the wife of the respondent. Since the rank of
parties was different in the various proceedings as both
the parties had initiated proceedings against each other,
for the sake of convenience and clarity the appellant
herein would be referred to as ‘wife’ and the respondent
herein would be referred to as ‘husband’ wherever the
context so admits.
Page 1 of 18
3. The husband initiated the petition under Section
13 of the Hindu Marriage Act seeking dissolution of the
marriage. The wife on the other hand initiated the
petition under Section 9 of the Hindu Marriage Act
seeking restitution of conjugal rights. The respective
petitions registered as H.M.O.P No.13/2010 (old
No.532/2007) and H.M.O.P No.27/2008 were clubbed
and the learned Subordinate Judge, Pollachi by the
judgment dated 26.11.2010 dismissed the petition filed
by the husband and allowed the petition filed by the wife.
The husband claiming to be aggrieved by the said
judgment preferred the appeals in CMA No.90/2011 and
71/2011 before the Additional District & Sessions Judge,
Coimbatore, namely, the First Appellate Court. The First
Appellate Court having considered the matter, dismissed
the appeals filed by the husband. The husband,
therefore, filed the Second Appeal under Section 100 of
the Code of Civil Procedure before the High Court of
Judicature at Madras in CMSA Nos.23 & 24 of 2016. The
High Court has through the impugned judgment dated
Page 2 of 18
20.07.2018 allowed the appeals, set aside the order for
restitution of conjugal rights and dissolved the marriage
between the parties herein. It is in that light the
appellantwife is before this Court in these appeals.
4. The undisputed position is that the marriage of the
parties was solemnised on 08.04.2005 which in fact was
after the parties had fallen in love with each other. As
per the averments, the wife is elder to the husband by six
to seven years. The parties also have a female child born
on 03.01.2007. During the subsistence of the marriage
certain differences cropped up between the parties. The
husband alleged that the wife was of quarrelsome
character and used filthy language in the presence of
relatives and friends and also that she had gone to the
college where the husband was employed and had used
bad language in the presence of the students which had
caused insult to him. The husband, therefore, claiming
that he belongs to a respectable family and cannot
tolerate such behaviour of the wife got issued a legal
notice dated 07.12.2006 which was not responded to by
Page 3 of 18
the wife. The husband therefore filed a petition under
Section 13 of Hindu Marriage Act in H.M.O.P No.65/2007
seeking dissolution of marriage. The husband contends
that the wife appeared before the Trial Court and on the
assurances put forth by her of leading a normal married
life the petition was not pressed further. The husband
alleges that merely about five days thereafter the wife
went to the college and abused him and also left the
marital home on 12.04.2007. In that background on the
very allegations which had been made in the first
instance, the petition seeking dissolution of marriage in
H.M.O.P No.13/2010 (old No.532/2007) was filed.
5. The wife who appeared and filed objection
statement disputed the allegations of the husband. The
factual aspects with regard to the qualification of the
husband at the time of the marriage and his employment
were also disputed. It was contended by her that after
marriage they resided together at Sathiyamangalam up to
the year 2005 and thereafter at Saravanampatti till
December, 2006. It was contended that the distance
Page 4 of 18
between the hometown of the parents of the husband and
the said places referred to is more than 120 kms and
travelling the said distance was difficult. Hence the
allegation of insulting them is not true. Subsequently
when the relationship between the husband and his
parents were cordial and were living together, it is
claimed that the wife had behaved well with the relatives
and the visitors. Hence the allegation about her rude
behaviour is disputed. In respect of the legal notice
issued by the husband on 07.12.2006 it is contended
that during the pregnancy, the husband told her that his
parents are insisting on issuing the legal notice and the
husband did not mean what had been indicated therein.
Within about 25 days thereafter the wife had delivered a
female child and even in respect of the earlier petition in
H.M.O.P No.65/2007 she was made to appear and
submit about her readiness to live with him which she
had done unsuspectingly. The said case was also stated
to be instigated by his parents. In that light, the wife had
Page 5 of 18
denied the allegations and sought for dismissal of the
petition.
6. In the petition filed by the wife under Section 9 of
the Hindu Marriage Act seeking for restitution of conjugal
rights she had referred to the manner in which the
marriage has taken place and had indicated that they are
living separately without valid reasons and, therefore,
sought for the relief. The husband having appeared filed
the objection statement referring to the parties belonging
to different communities as also the age difference. The
further averments made in the petition were denied. The
husband also referred to the complaint filed by the wife
before the Negamam Police Station in Crime
No.401/2007 in which the husband was arrested by the
police and was in judicial custody for seven days. In that
light, it was contended that the marriage between the
parties had broken down to a point of no return, hence
sought for dismissal of the petition.
7. The Trial Court framed the issues based on the
rival contentions. The husband examined himself and the
Page 6 of 18
witnesses as PW1 to PW4 and exhibited the documents
A1 to A5, while the wife examined herself and the
witnesses as RW1 to RW3 and exhibited the documents
as R1 to R3. The Trial Court after referring to the
evidence tendered, has dismissed the petition. While
doing so the Trial Court had referred in detail to the
evidence that had been tendered and in that light insofar
as the allegations, the Trial Court was of the opinion that
the husband has not examined any witnesses to prove
that after 15 months of the marriage the quarrel started
between them and that he had to shift about seven
houses due to quarrelling nature of the wife with the
neighbours. It was further observed that from the
witnesses who have been examined, the evidence do not
relate to the allegation that the wife had abused the
husband in front of the students and the coworkers. In
that light, the Trial Court noticed that the allegation
made by the husband as PW1 and the relatives who were
examined as witnesses (PW2 and PW3) had alleged that
the wife had lived a luxurious life at her parent’s house.
Page 7 of 18
In that light, the Trial Court taking into consideration the
manner in which the marriage between the parties had
taken place and also taking note that a female child was
born from the wedlock on 03.01.2007 had formed the
opinion that the petition seeking divorce had been filed at
the instigation of the parents of the husband and there
was no real cause for granting the divorce.
8. The First Appellate Court while considering the
appeals filed by the husband had taken note of the
evidence which had been referred to before the Trial
Court and in that light having reappreciated the matter
had upheld the judgment of the Trial Court.
9. In the Second Appeal filed before the High Court, it
raised the following substantial questions of law for
consideration:
“1. Whether the courts below are correct
and justified in failure to dissolve the
marriage of the appellant and respondent
on the ground of mental cruelty (when
particularly the alleged complaint dated
24.11.2007 for dowry harassment lodged
by the respondent against the appellant
and her inlaws and the consequent arrest
Page 8 of 18
by the police would unquestionably
constitutes cruelty as postulated in section
13(1)(ia) of the Hindu Marriage Act?
2. Whether the judgments of the courts
below in dismissing the petition for divorce
overlooking the subsequent event
regarding the lodging of false criminal
complaint by the respondentwife for
dowry harassment against the appellant
and her inlaws are sustainable in law?
3. Whether the judgment of the courts
below are correct and justified when
particularly the criminal prosecution
initiated in C.C.No.149 of 2008 on the file
of the Judicial Magistrate No.2, Pollachi for
dowry harassment is ended in Honorary
acquittal?
4. Whether the judgment of the courts
below are perverse?”
10. It is in that background, the High Court had
arrived at the conclusion that the criminal case filed by
the wife, which was proceeded in C.C. No.149/2008
alleging that the husband had demanded dowry and in
the said proceedings when the allegation is found to be
false for want of evidence the same would be an act of
inflicting mental cruelty as contemplated under
Section13(1)(ia) of the Hindu Marriage Act and in that
light had allowed the appeal.
Page 9 of 18
11. Heard Mr. S. Nandakumar, learned counsel for the
appellantwife, Mr. B. Ragunath, learned counsel for the
respondenthusband and perused the appeals papers.
12. In the light of the contentions put forth by the
learned counsel, a perusal of the papers would disclose
that the petition for dissolution of marriage instituted by
the husband was on the allegation that the behaviour of
the wife was intemperate as she was quarrelsome with
the neighbours, friends and with the visitors. It was
alleged that she had also gone over to the place of
employment of the husband and demeaned him in the
presence of the students and other coworkers. In
respect of the said allegations, the Trial Court having
taken note of the evidence tendered through PW1 to PW4
had arrived at the conclusion that the said evidence was
insufficient to prove the allegations which were made in
the petition. A bare perusal of the judgment passed by
the Trial Court would indicate that the evidence available
on record has been referred to extensively and a
conclusion has been reached. The First Appellate Court
Page 10 of 18
has also referred to the said evidence, reappreciated the
same and has arrived at its conclusion. In such
circumstance, in a proceeding of the present nature
where the Trial Court has referred to the evidence and
the First Appellate Court being the last Court for
reappreciation of the evidence has undertaken the said
exercise and had arrived at a concurrent decision on the
matter, the position of law is well settled that neither the
High Court in the limited scope available to it in a Second
Appeal under Section 100 of the Civil Procedure Code is
entitled to reappreciate the evidence nor this Court in the
instant appeals is required to do so.
13. It is in that view, we have not once again referred
to the evidence which was tendered before the Trial Court
which had accordingly been appreciated by the Trial
Court. In such situation the High Court had the limited
scope for interference based on the substantial question
of law. The substantial questions of law framed by the
High Court has been extracted and noted in the course of
this judgment. At the outset, the very perusal of the
Page 11 of 18
questions framed would disclose that the questions
raised does not qualify as substantial questions of law
when the manner in which the parties had proceeded
before the Trial Court is noticed. The questions framed in
fact provides scope for reappreciation of the evidence
and not as substantial questions of law. As noticed, in
the instant facts the husband filed a petition at the first
instance, seeking dissolution of marriage in H.M.O.P
No.65/2007 and the same was predicated on the
allegation about the wife using filthy language in the
presence of the relatives and friends and also using such
language in the presence of the students of the husband.
It is in that light, the husband alleged cruelty and sought
for dissolution of marriage on that ground. It is no doubt
true that the said petition which was initially filed was
not pressed though the contentions of the parties in that
regard is at variance, inasmuch as the husband
contends that the petition was not pressed as the wife
had assured of appropriate behaviour henceforth, while
the wife contends that the said proceedings had been
Page 12 of 18
initiated at the instigation of his parents and had
accordingly not been pressed thereafter.
14. Be that as it may, though the subsequent petition
was filed by the husband in H.M.O.P No.13/2010 which
was originally numbered as H.M.O.P No.532/2007, the
same was also filed on the same set of allegations.
Further at that point in time the wife had also filed a
petition under Section 9 of the Hindu Marriage Act. In
that background, though subsequently in the
proceedings before the Trial Court a reference is made to
the criminal proceedings, as on the date when the cause
of action had arisen for the husband who initiated the
proceedings seeking dissolution of the marriage, the
criminal case filed against him was not the basis whereby
a ground was raised of causing mental cruelty by filing
such criminal complaint. If that be the position, a
situation which was not the basis for initiating the
petition for dissolution of marriage and when that was
also not an issue before the Trial Court so as to tender
evidence and a decision be taken, the High Court was not
Page 13 of 18
justified in raising the same as a substantial question of
law and arriving at its conclusion in that regard. A
perusal of the judgment of the High Court indicates that
there is no reference whatsoever with regard to the
evidence based on which the dissolution of marriage had
been sought, which had been declined by the Trial Court
and the First Appellate Court and whether such
consideration had raised any substantial question of law.
But the entire consideration has been by placing reliance
on the judgment which was rendered in the criminal
proceedings and had granted the dissolution of the
marriage. The tenor of the substantial questions of law
as framed in the instant case and decision taken on that
basis if approved, it would lead to a situation that in
every case if a criminal case is filed by one of the parties
to the marriage and the acquittal therein would have to
be automatically treated as a ground for granting divorce
which will be against the statutory provision.
15. It cannot be in doubt that in an appropriate case
the unsubstantiated allegation of dowry demand or such
Page 14 of 18
other allegation has been made and the husband and his
family members are exposed to criminal litigation and
ultimately if it is found that such allegation is
unwarranted and without basis and if that act of the wife
itself forms the basis for the husband to allege that
mental cruelty has been inflicted on him, certainly, in
such circumstance if a petition for dissolution of
marriage is filed on that ground and evidence is tendered
before the original court to allege mental cruelty it could
well be appreciated for the purpose of dissolving the
marriage on that ground. However, in the present facts
as already indicated, the situation is not so. Though a
criminal complaint had been lodged by the wife and
husband has been acquitted in the said proceedings the
basis on which the husband had approached the Trial
Court is not of alleging mental cruelty in that regard but
with regard to her intemperate behaviour regarding
which both the courts below on appreciation of the
evidence had arrived at the conclusion that the same was
not proved. In that background, if the judgment of the
Page 15 of 18
High Court is taken into consideration, we are of the
opinion that the High Court was not justified in its
conclusion.
16. The learned counsel for the respondent however,
contended that ever since the year 2007 the parties have
been litigating and were living separately. In that
situation it is contended that the marriage is irretrievably
broken down and, therefore, the dissolution as granted
by the High Court is to be sustained. The learned
counsel has relied on the decisions in the case of Naveen
Kohli vs. Neelu Kohli (2006) 4 SCC 558, in the case of
Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2
SCC 220 and in the case of Samar Ghosh vs. Jaya
Ghosh (2007) 4 SCC 511 to contend that in cases where
there has been a long period of continuous separation
and the marriage becomes a fiction it would be
appropriate to dissolve such marriage. On the position of
law enunciated it would not be necessary to advert in
detail inasmuch as the decision to dissolve the marriage
Page 16 of 18
apart from the grounds available, will have to be taken on
case to case basis and there cannot be a strait jacket
formula. This Court can in any event exercise the power
under Article 142 of the Constitution of India in
appropriate cases. However, in the instant facts, having
given our thoughtful consideration to that aspect we
notice that the parties hail from a conservative
background where divorce is considered a taboo and
further they have a female child born on 03.01.2007 who
is presently aged about 13 years. In a matter where the
differences between the parties are not of such
magnitude and is in the nature of the usual wear and
tear of marital life, the future of the child and her marital
prospects are also to be kept in view, and in such
circumstance the dissolution of marriage merely because
they have been litigating and they have been residing
separately for quite some time would not be justified in
the present facts, more particularly when the restitution
of conjugal rights was also considered simultaneously.
Page 17 of 18
17. In that view, having arrived at the conclusion that
the very nature of the substantial questions of law
framed by the High Court is not justified and the
conclusion reached is also not sustainable, the judgment
of the High Court is liable to be set aside.
18. In the result, the judgment dated 20.07.2018
passed in CMSA Nos.23 & 24 of 2016 is set aside. The
judgment dated 26.11.2010 passed in H.M.O.P
Nos.13/2010 and H.M.O.P No.27/2008 and affirmed in
CMA No.90/2011 and CMA No.71/2011 are restored.
The Appeals are accordingly allowed with no order as to
costs.
19. Pending applications if any, shall also stand
disposed of.
………….…………….J.
(R. BANUMATHI)
.……………………….J.
(S. ABDUL NAZEER)
………….…………….J.
(A.S. BOPANNA)
New Delhi,
March 03, 2020
Page 18 of 18
