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2009 DIGILAW 477 (MAD)

A. S. Ramaa v. U. R. Ananthakrishnan

2009-02-10

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment :- This revision has been directed against the order passed in I.A.No.2803 of 2006 in FCOP.No.69 of 1997 on the file of the II Additional Principal Judge, Family Court, Chennai. I.A.No.2803 of 2006 was filed by the wife, respondent in FCOP.No.69 of 1997 which was filed by the husband for divorce. An exparte degree was passed in the said FCOP.No.69 of 1997 on 110. 2006. To set aside the same I.A.No.2803 of 2006 was filed by the wife. 2.In the affidavit to the petition in I.A.No.2803 of 2006, which runs about four pages, at paragraph 6, the reason for her non-appearance on the date of enquiry ie., on 110. 2006 is stated that as she was suffering from rheumatic arthritis and also due to severe stomach upset due to womanly reasons. She has also filed doctors certificate dated 110. 2008 issued by Dr.N.Sivasubramanian (Ayurvedic Consultant) to show that she was suffering from Rhumatic Diordor from April 2006 to till date. The learned II Additional Principal Judge, Family Court, Chennai, has dismissed the said application on the ground that the ground alleged by the petitioner/wife for her non-appearance on 110. 2006 & 110. 2006 is not convincing and cannot be accepted. 3.A perusal of the order passed by the learned II Additional Principal Judge, Family Court, Chennai, dated 24. 2007 in I.A.No.2803 of 2006 would go to show that when the case was posted for enquiry on 25.08.2006 and on 22.09.2006 both the husband and wife were present in the Court. Even at that time the case was at part heard stage and P.W.1 was examined in chief and he is to be cross-examined by the respondent / wife. There is no reasoning given in the said order of the learned II Additional Principal Judge as to why the matter was not taken up on 25.08.2007 or on 9. 2006 on which dates both the husband and wife were present in the Court. Suddenly the case was taken up on 110. 2006 after giving notice and on that date husband alone was present, but the wife could not be present and after setting her exparte, P.W.1 was examined and Ex.P.1 to Ex.P.13 were marked and exparte decree was passed on 110. 2006. Suddenly the case was taken up on 110. 2006 after giving notice and on that date husband alone was present, but the wife could not be present and after setting her exparte, P.W.1 was examined and Ex.P.1 to Ex.P.13 were marked and exparte decree was passed on 110. 2006. The main ground on which the divorce application was filed by the husband was that the wife / respondent was suffering from mental illness and treated the petitioner / husband with cruelty. Even at paragraph 4 of the petition the petitioner / husband had alleged that the wife was suffering from behavioural instability and she was treated at Kumudh Nursing Home, Jayanagar, Bangalore in 1983 and also in a Public Health Centre at Mambalam run by Dr.Vijayakumar, a Psychiatrist, in the year 1990 and subsequently also she was treated at Isabella Hospital by Dr.Nambi. 4.But the exparte order of divorce was passed by the learned II Additional Principal Judge, Family Court, Chennai, only on the basis of the evidence of the petitioner / husband and no doctor was examined on the side of the petitioner to show that due to the mental illness suffered by the wife, the husband had suffered cruelty at the hands of his wife. Out of 13 documents produced on the side of the petitioner Ex.P.7 and Ex.P.11 alone are the medical documents. Ex.P.7 is a prescription slip for tablet (Screnau) and Ex.P.11 is a certificate issued by Dr.K.R. Parthasarathi. Ex.P.11 was issued to the husband U.R. Ananthakrishnan, respondent herein prescribing some medicines for curing the depression. So absolutely there is no medical records produced by the petitioner / husband to show that the wife was suffering from mental illness. Unless the ground for divorce is made out under Section 13(1)(a) of the Act an order of divorce cannot be granted. So, I am of the considered view that an opportunity must be given to the revision petitioner / wife to make her defence in the petition in FCOP.No.69 of 1997 filed by the respondent herein / husband. 5.In fine, the Revision is allowed and the order passed in I.A.No.2803 of 2006 in FCOP.No.69 of 1997 on the file of the II Additional Principal Judge, Family Court, Chennai, is set aside. 5.In fine, the Revision is allowed and the order passed in I.A.No.2803 of 2006 in FCOP.No.69 of 1997 on the file of the II Additional Principal Judge, Family Court, Chennai, is set aside. The learned II Additional Principal Judge, Family Court, Chennai, shall restore FCOP.No.69 of 1997 to his file and after giving an opportunity to the revision petitioner to cross-examine P.W.1 and after giving sufficient opportunities to both sides, shall dispose of the same in accordance with law within three months from the date of receipt of copy of this order. No costs. Connected Miscellaneous Petition is closed.