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2008 DIGILAW 1012 (MAD)

K. Devika v. K. Kanniappan

2008-03-24

K.RAVIRAJA PANDIAN, P.P.S.JANARTHANA RAJA

body2008
Judgment :- K. RAVIRAJA PANDIAN, J. These appeals are filed by the appellant/ wife against the orders of the II Additional Family Court, Chennai dated 19. 2002 made in F.C.O.P.No.1371 of 1995 non-suiting the appellant for restitution of conjugal rights and F.C.O.P.No.216 of 1996 granting the relief of divorce to the respondent on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act by dissolving the marriage of the appellant with the respondent solemnised on 2. 1985. 2. The material facts that are necessary for disposal of these appeals are as follows: The appellant and respondent got married as per the Hindu rites and customs on 2. 1985 at Manimangalam village, Sriperumbudur Taluk. It is the case of the appellant that her life was somewhat happy for the first two years. However, from the date of marriage itself, the respondent demanded scooter and compelled the appellants brother Srinivasan to marry the respondents sister Rani. As both the demands were negatived by the appellant and her family, the respondent and his family members started ill-treating the appellant. After exchange of legal notices, the appellant filed a petition for restitution of conjugal rights before the Sub-Court, Poonamallee. As the respondent assured to lead a cordial life with the appellant, the said petition was closed. Even after the re-union, the appellant was subjected to torture by the respondent and the members of the family by not allowing the appellant to see her family members. In the meanwhile, a male child was born to the appellant. The appellant was denied proper food and treatment during the period of her pregnancy. The respondents family members made arrangement to get the respondents sisters daughter married to him. The respondents mother and widowed sister had poured kerosene on the appellant with an intention to set ablaze her. But fortunately she escaped and lodged a complaint against the respondent and his family members on 111. 1994 with All Womens Police Station, Avadi. The respondent and her family members were advised by the police to behave properly. The intervention of the Ex.M.L.A. for re-union of the appellant with the respondent also went in vain. On 6. 1995, the appellant was meted out with untold harassment at the hands of the respondent and his family members. She made a complaint in the All Womens Police Station, Avadi. The intervention of the Ex.M.L.A. for re-union of the appellant with the respondent also went in vain. On 6. 1995, the appellant was meted out with untold harassment at the hands of the respondent and his family members. She made a complaint in the All Womens Police Station, Avadi. Though the respondent has obtained an anticipatory bail, he has not taken any steps to give the appellant the conjugal right. The respondent totally withdrawn and neglected the appellant from 6. 1995. On that basis, she claimed restitution of conjugal rights. 3. The case of the respondent was that the allegations made against him were totally baseless and are imaginary in nature. The respondent was the only male member, who is having an obligation to look after his mother and widowed sister. The appellant, for the reasons best known to her, developed a hatred attitude towards the mother and sister of the respondent and wanted to have a separate family. The respondent was not obliged to that request. All his advise and persuasion that the destitute mother and sister should not be denied of his care and protection went in vain. That made the appellant to pick up frequent quarrels with him, his mother and sister. The respondent always treated the appellant with love and affection. The appellant in order to coerce and compel the respondent to be under her thumb, had given a false complaint to the police not only accusing the respondent but also his family members for contemplation of second marriage and attempted to murder her. It is the appellant and his brother assaulted the respondents mother on 16. 1995 and a police complaint was lodged by his mother. The respondent has taken all and every step to have a peaceful married life with the appellant as a dutiful husband. But all the efforts were just like that destroyed and denied by the appellant, because of her adamant behaviour. Most part of the marital life passed away with full of agony created by the appellant. The cruelty caused by the appellant not stopped with the respondent, but made against the destitute mother and widowed sister of the appellant. Even the last hope of the re-union has been destroyed by the appellant in view of her false complaint made against the respondent and his family members to the police. 4. The cruelty caused by the appellant not stopped with the respondent, but made against the destitute mother and widowed sister of the appellant. Even the last hope of the re-union has been destroyed by the appellant in view of her false complaint made against the respondent and his family members to the police. 4. The Family Court, after taking note of the material evidence placed before it on the side of both the parties and taking into consideration of arguments advanced, granted the relief of divorce to the respondent herein having found that the appellant alone is the reason for the disharmony in the marital life and the steps taken by the respondent for re-union have been just like that thrown away by the appellant and the appellant alone out of her own passion deserted the husband and she was not entitled to the relief of decree for conjugal right. The correctness of the orders of the Family Court is now canvassed in these appeals. 5. Before us also, the very same plea is raised by the appellant that the respondent has driven the appellant away from her marital home and she was always ready and willing to have a cordial and peaceful marital life. 6. On the side of the respondent, it is submitted that there is absolutely no possibility for re-union, because of the adamant attitude of the appellant and the insult and injury caused to the respondent and his family members by making a false complaint to the police against them. Even the minor child of the respondents sister has not been spared by the appellant. She made a false complaint to the police that the respondent and his family members are planning to marry the minor child in a re-marriage to the respondent. Thus, the feeling of the respondent has been broken into pieces. The prestige and hard earned reputation of the respondent has been thrashed into dust by the appellant. The appellant has a habit of going to any extent and stoop to any level to get her things done. Even during the pendency of the proceedings before the Family Court and thereafter the respondent is looking after the expenses for the education and clothes of the children. The appellant has a habit of going to any extent and stoop to any level to get her things done. Even during the pendency of the proceedings before the Family Court and thereafter the respondent is looking after the expenses for the education and clothes of the children. He is ready to settle the house property in the name of the children and further ready to give a sum of Rs.500/- per month or Rs.5,000/- per year towards the maintenance of the children. 7. When the matter was pending before this Court, it was referred to Mediation and Conciliation Centre by order dated 17. 2006. The Mediation and Conciliation Centre returned the case by recording a finding that both the parties are behaving as south and north poles and there was no possibility for re-union of the parties by its minutes dated 111. 2006. 8. We in our turn called the parties to find out as to whether there is any possibility for re-union among them. Even before us, in spite of the persuasion there is no progress for re-union of the parties. However, the respondent submits that he is ready to give a sum of Rs.500/- per month or Rs.5,000/-per year towards the maintenance of the children and settle the house property in the name of children. 9. In matters relating to matrimonial disharmony leading to filing of divorce petitions where the parties have been living separately for a long number of years with no possibility of reunion, indicating the marriage irretrievably broken, the decision of the Supreme Court reported in (2006) 4 SCC 558 (NAVEEN KOHLI Vs. NEELU KOHLI) and (2007) 4 SCC 511 (SAMAR GHOSH Vs. JAYA GHOSH) need to be noted. In the decision in the case of NAVEEN KOHLI, observed that though irretrievable marriage is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955, the Apex Court held that if after an endeavour to reconcile the parties, the breakdown is irreparable, then divorce should not be withheld. The Court held that it would be unrealistic for the law not to take notice of that fact and it would be harmful to society and injurious to the interest of the parties. Where there being a long period of continuous separation, it may fairly be surmised that the irretrievable bond is beyond repair. Marriage becomes a fiction, though supported by a legal tie. Where there being a long period of continuous separation, it may fairly be surmised that the irretrievable bond is beyond repair. Marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of parties. 10. The Apex Court once again, in the decision reported in SAMAR GHOSH referred to supra, had an occasion to consider a similar situation. Referring to various case laws on the subject including the case of NAVEEN KOHLI, the Supreme Court held that "under the breakdown theory, divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances." 11. In the present case, we have seen the materials available on record. We have heard the learned counsel appearing for the appellant. In the totality of the case, as the parties have been living separately since thirteen years and attempts made by the Court had further failed, we are constrained to come to the conclusion that the marriage between the parties has irretrievably broken down and there is no possibility for them for re-union and lead a happy life. 12. The offer made by the respondent to pay a sum of Rs.5,000/-per year towards the maintenance of the children, in our view, is too lower amount considering the present day cost of living. Hence, the respondent is hereby directed to pay a sum of Rs.10,000/-(Rupees ten thousand only) per year towards the maintenance of the children and the assurance made by the respondent through the counsel that the house property owned by the respondent would be settled in favour of the children is hereby recorded. The respondent is further directed not to encumber the property till such arrangement is made and it is made clear that encumbrance, if any, is made by the respondent in respect of the house property, would not bind the children of the respondent. With this observation, the appeals are dismissed. However, there is no order as to costs.