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2008 DIGILAW 1907 (MAD)

Devika Rani v. V. Sridharan & Another

2008-06-20

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

body2008
Judgment :- K. Raviraja Pandian, J. The Civil Miscellaneous Appeal is filed against the against the Judgment and decree in F.C.O.P.No.932/96 dated 23. 2001 on the file of the Additional Family Court at Chennai, granting a decree of divorce in favour of the first respondent/husband. 2. It is the case of the first respondent/husband that the marriage between the appellant and the first respondent took place on 28. 1982 and a male child was born to them on 25. 1993. After the birth of the child, their married life was not happy. The appellant/wife used to ridicule the husband as he is handicapped, which caused him mental agony. The appellant is living in adultery with the second respondent, who is working as a fitter in Loco Shop in Loco Works, Integral Coach Factory, Chennai and deserted the husband from December 1991. Therefore he sought for dissolution of their marriage. The additional ground of cruelty is also taken by the first respondent by filing of an interlocutory application. 3. It is the case of the appellant that she never ill-treated or caused cruelty to her husband by ridiculing his physical deformity. She had never talked derisively with the husband. The husband only deserted her and the child. After desertion of her husband, she sought the help of Tamil Nadu State Legal Aid Board to advise her husband to live with her. Before the Board, the husband agreed to live with the appellant and they lived together since January 1992 at Korattur for about nine months and again deserted her and child. The husband paid Rs.1,000/-only once towards maintenance. Therefore, she filed petition for maintenance. She is not having any illicit intimacy with the second respondent. The second respondent remained absent. 4. The Family Court after considering the evidence adduced by both the parties granted divorce on the ground of cruelty by dissolving the marriage between the appellant and the first respondent on 28. 1982. 5. Learned counsel appearing for the appellant has very strenuously contended that though originally the divorce Petition was filed on the grounds of desertion and living in adultery, the ground of cruelty was allowed to be incorporated only after the trial was over and the appellant was not given any opportunity to establish or defend the case projected by the parties. Learned counsel appearing for the appellant has very strenuously contended that though originally the divorce Petition was filed on the grounds of desertion and living in adultery, the ground of cruelty was allowed to be incorporated only after the trial was over and the appellant was not given any opportunity to establish or defend the case projected by the parties. The relief of divorce has been granted based on certain letters written by the wife, which are all prior to the year 1992. Subsequently, the appellant and the first respondent have lived together for some time as husband and wife. Hence, all the acts that were done prior to 1992 are deemed to have been condoned, which cannot form basis for any relief in favour of the husband. She has further contended that as the parties lived together for some period that because of living together in the year 1992, the act of cruelty is deemed to have been condoned in law and that cannot form basis for granting divorce. She lastly contended that even today the appellant is having very cordial relation with all other members of the husband except her husband. By contending so, the learned counsel sought to set aside the decree of divorce granted by the Family Court. 6. Per contra, learned counsel appearing for the first respondent has contended that the marriage of the first respondent with the appellant was dissolved as early as 22. 2001. The respondent got re-married on 16. 2002. On 29. 2001 only the appeal was admitted by this Court on 24. 2002. Despite all these facts, the appellant was paying maintenance at the rate of Rs.2,500/-as per the direction of the Criminal Court in a Criminal Proceedings. He further contended that all the materials, which were required for giving a finding as to the cruelty are very much available. The parties know as to what is the case of each party. When that being the position, mere adding one more ground to the relief sought for cannot vitiate the proceedings. He has taken us through the judgment of the Family Court and concluded that the reasons given by the Court below is cogent and unassailable. 7. We heard the argument of the learned counsel on either side and perused the material on record. 8. He has taken us through the judgment of the Family Court and concluded that the reasons given by the Court below is cogent and unassailable. 7. We heard the argument of the learned counsel on either side and perused the material on record. 8. In respect of the first contention that the ground of cruelty has been subsequently added cannot by itself vitiate the proceedings. It is well settled that laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties, vide Bhagwan Swaroop vs. Mool Chand, (1983) 2 SCC 132 ). On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. Depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best. 9. In the very same judgment, the Court observed that laws of procedure are devised for advancing justice and not impeding the same. The Supreme Court in that judgment quoted from the decision in the case of Sangram Singh v. Election Tribunal, Kotah, ( AIR 1955 SC 425 ) wherein it was observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in the decision in the case of Kalipada Das v. Bimal Krishna Sen Gupta, (1983) 1 SCC 14 ). The parties in this case are well aware of their case and went to the trial with knowledge about their case. This was reaffirmed in the decision in the case of Kalipada Das v. Bimal Krishna Sen Gupta, (1983) 1 SCC 14 ). The parties in this case are well aware of their case and went to the trial with knowledge about their case. The trial Court has extracted voluminous portion of documentary evidence to come to conclusion that the appellant is guilty of charges of cruelty to the husband. 10. For the fore-going reasons, when the parties are aware of the issues, the amendment as to cruelty sought for at a later stage by the first respondent would not vitiate the reasoning given by the trial Court to come to the conclusion that the first respondent has established the case of cruelty, particularly, the reasoning stated in point NO.3., in which a clear finding has been given that the appellant/wife was always repulsive in nature. In almost all the letters which have been marked as Exhibits, the appellant/wife has accused the first respondent/husband with unparliamentary words. Those exhibits would go to prove that the act of the appellant is nothing but causing mental cruelty. 11. We have also considered the documents as extracted in the order impugned. In our considered opinion, the mere reading of the contents of Exhibits would establish the case of the husband that the appellant has committed cruelty. The relief granted by the trial Court on the ground of cruelty cannot be regarded as one with extraneous nature but has been rendered on the basis of material made available before the Court. Hence, we do not find any reason to interfere with the order of the Family Court. 12. For the fore-going reasons, the appeal deserves to be dismissed and the same is dismissed However, there is no order as to costs.