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2002 DIGILAW 1570 (MAD)

N. Ezhumalai v. Baby

2002-12-12

A.K.RAJAN, P.SATHASIVAM

body2002
Judgment :- A.K.Rajan, J. Aggrieved by the order of the Family Court, Chennai, dated 27.10.1999, made in F.C.O.P. No.756 of 1994, dismissing the petition for divorce filed by the husband, this appeal has been preferred. 2. Before the Family Court, the petitioner/husband has stated that the petitioner and the respondent got married on 27.10.1991 at Jayamangalam Kalyana Mandapam, Madras-13. After the marriage, they lived together in the petitioner's house for six months. Thereafter, since the respondent wanted to set up a separate house apart from the parents, the petitioner refused. Therefore, the respondent went to her parents' house taking all the gold jewels. Subsequently, a panchayat was arranged on 16.5.1992. Even then, the respondent refused to live with the petitioner. Thereafter, the respondent gave a police complaint before the Legal Aid Officers and the petitioner was enquired by the Legal Aid Officers. Again, the respondent gave a complaint to the Inspector of Police, Dowry Cell, Madras-1, on 1.5.1994. The petitioner was summoned and even after conciliation, the respondent refused to live with the petitioner. The petitioner has suffered mental agony and torture for the past two years. Hence, this petition has been filed for dissolution of marriage on the ground of cruelty and desertion under Section 13(1), (ia) and (ib) of the Hindu Marriage Act, 1955. 3. A counter was filed by the respondent in which it is stated as follows: At the time of marriage, the parents' of the respondent gave 8 sovereigns of gold jewels and household articles. Entire marriage expenses were born by the respondent's parents. After the marriage, they lived together in the petitioner's house along with his family. During that period, the petitioner used to ask the respondent to get money from her parents. The averments made in the petition are all false. The respondent never asked the petitioner for separate residence. In the month of May 1992, the petitioner picked up a quarrel with the respondent and driven out of the house. After the intervention of panchayatdars, she was taken back and lived with the petitioner for another year. "For reasons best known to the petitioner, the marriage was not consummated". The petitioner kept on pestering the respondent for more money. The respondent was not allowed to enter into the house without his permission. There was no misunderstanding between them and she is anxious to live peacefully with the petitioner. 4. "For reasons best known to the petitioner, the marriage was not consummated". The petitioner kept on pestering the respondent for more money. The respondent was not allowed to enter into the house without his permission. There was no misunderstanding between them and she is anxious to live peacefully with the petitioner. 4. On these pleadings, the petitioner was examined as P.W.1 and three documents were marked. On the side of the respondent, apart from the respondent, one Murugan was examined. Considering the evidence on record, the Family Court dismissed the petition for divorce on the ground that the pre-conditions for divorce under Section 13(1), (ia) and (ib) of the Hindu Marriage Act are not satisfied. With regard to the cruelty, the Family Court has held that "from the evidence of the petitioner and the respondent, it is evident that there is not even a single act of cruelty meted out to him by the respondent. The respondent has not treated the petitioner with cruelty." As we find no reason to alter this findings, we confirm the same. 5. With respect to the other ground on desertion, the petitioner gave a notice Ex.P2 on 13.7.1994 to the respondent calling upon her to live with him. But, on the very next day, i.e. 14.7.1994, the petitioner has filed a petition before the Family Court seeking divorce. As admitted by the petitioner in the cross examination, the respondent left the home in September, 1993. Therefore, on 14.7.1994 when this petition was filed, the period of two years required for filing a petition for divorce on the ground of desertion, was not complete. The Family Court has rightly held that divorce cannot be granted since the pre-condition of desertion for two years was not complete on the date of filing of the petition. Therefore, this conclusion of the Family Court also does not suffer from any infirmity and the same cannot be interfered with. Hence, we confirm this finding also. 6. Even in the judgment itself, it has been clearly stated that as on the date of the judgment, the parties were living separately for more than five years. The continuous separate living of the parties may give an independent cause of action for the petitioner. The petitioner, if chooses, may file a fresh petition before the Family Court for appropriate relief. With the above observation, this appeal is dismissed. No costs.