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.   

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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

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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

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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

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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

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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

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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.

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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

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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.  

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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

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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

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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

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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

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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

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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

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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

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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.   

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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

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