Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 1070 (MAD)

K. Vembadurai v. Padmavathy

2011-03-01

R.S.RAMANATHAN

body2011
Judgment :- 1. The husband is the appellant. He filed a petition for divorce on the ground of desertion. 2. The case of the appellant was that the marriage took place on 5.7.1971 and within a few months from the date of marriage, the respondent left the matrimonial home without any justifiable cause, to her parents house and then she returned to the matrimonial home after request made by the appellant and thereafter in November 1972 she again left the matrimonial home without any reasonable and justifiable cause. A female child was born in February 1973 and the appellant and his parents were not permitted to see the child. The respondent also refused to come and live with the appellant. The respondent also filed O.S.No.364 of 1974 for maintenance and maintenance was ordered. Even for the daughter's marriage, he was not invited. As the respondent is living separately without reasonable and justifiable cause from 1972 onwards, the petition was filed for divorce. 3. The respondent denied the allegations made in the petition and stated that she was driven away from the house by the appellant and his parents and they demanded 50 sovereigns and even after the birth of the child, they did not come and take back the respondent and therefore, there is no desertion on her part. 4. The Trial Court held that the conduct of the respondent in living away from the appellant without any reasonable and justifiable cause will amount to mental cruelty and granted divorce. 5. The first appellate court reversed the finding and held that the respondent was prevented from living with the appellant by reason of cruelty meted out to her by the appellant and his parents and therefore, the finding of the Trial Court that the respondent was guilty of desertion and she has treated the appellant cruelly cannot be sustained and allowed the appeal. 6. Aggrieved by the same, this second appeal is filed. 7. At the time of admission, the following substantial questions of law were framed by this court:- "1) Whether the lower appellate court is correct in holding that the appellant has treated the respondent with cruelty in the absence of any evidence to that effect. 2) Whether the lower appellate court is right in reversing the decree of divorce when admittedly, the parties are living separately since 1972 and the marriage has irretrievably broken." 8. 2) Whether the lower appellate court is right in reversing the decree of divorce when admittedly, the parties are living separately since 1972 and the marriage has irretrievably broken." 8. Mr.K.S.Jeyaganeshan, learned counsel for the appellant submitted that, admittedly, the parties are not living together and the respondent is living separately from the year 1972 and the appellant was prevented from attending the marriage of his daughter and the appellant was also not informed about the marriage and no reasonable excuse was given for staying away from the husband and these facts would prove that the respondent treated the appellant with cruelty and she has wilfully deserted the appellant and in any event, the marriage has irretrievably broken and there is no purpose in keeping the marriage alive and hence, the appeal must be allowed. 9. It is further submitted by the learned counsel for the appellant that, admittedly, the parties are living separately from 1972 onwards and even in mediation also it was made clear that they are not ready to settle the matter and therefore, no useful purpose will be served and the marriage has been irretrievably broken down and therefore, divorce can be granted on the ground of irretrievable break down of the marriage. He also relied upon the decision in DURGA PRASANNA TRIPATHY v. ARUNDHATI TRIPATHY (2005(4) CTC 287) in support of his contention. 10. On the other hand, the learned counsel for the respondent submitted that even though the parties are living separately for the past thirty years, that cannot be a reason for dissolving the marriage and the marriage cannot be dissolved on the ground that the marriage has been irretrievably broken and the Honourable Supreme Court has also held that unless the statute is amended introducing a clause for divorce on the ground of irretrievable break down of the marriage, the marriage cannot be dissolved on that ground. 11. 11. The learned counsel for the respondent further submitted that the appellant cannot take advantage of his own wrong and the respondent was forced to live separately from her husband by reason of the conduct of the appellant and therefore, he is not entitled to get divorce taking advantage of his own wrong and divorce cannot be granted on the ground of irretrievable break down of the marriage and hence, the first appellate court has rightly refused to accept the plea and dismissed the petition filed by the appellant. 12. Heard both side. It is seen from Ex.P1 that in the suit filed by the respondent claiming maintenance for herself and her minor daughter, decree was passed granting maintenance to the respondent and her minor daughter. In that suit, the court found that the appellant treated the respondent with cruelty and the respondent is entitled to separate residence. It has been upheld by this court in Appeal Suit Nos.206 of 1977 and 505 of 1978 and this court enhanced the maintenance to Rs.100/= per month for the respondent and Rs.50/= per month for the child. Therefore, the finding of this court that the respondent was treated cruelly by the appellant cannot now be canvassed by the appellant stating that he has not treated the respondent with cruelty. I therefore, hold that the respondent is not guilty of desertion nor guilty of treating the appellant with cruelty and the finding of the Trial Court on that ground is erroneous and that has been rightly reversed by the first appellate court. Hence, the substantial question of law No.1 is answered against the appellant. 13. As per the provisions of the Hindu Marriage Act, divorce can be granted as per the grounds stated in section 13 of the Act. Admittedly, divorce cannot be granted on the ground of irretrievable break down of marriage. No doubt, the Honourable Supreme Court has held in various judgments that when the parties are living separately for many years, divorce can be granted on the ground of irretrievable break down of the marriage. Admittedly, divorce cannot be granted on the ground of irretrievable break down of marriage. No doubt, the Honourable Supreme Court has held in various judgments that when the parties are living separately for many years, divorce can be granted on the ground of irretrievable break down of the marriage. In the recent judgment reported in MANISH GOEL v. ROHINI GOEL ( (2010) 4 SCC 393 ), the Honourable Supreme Court has reiterated the principle that the dissolution of the marriage can be granted where the marriage is totally unworkable, emotionally dead beyond salvage and broken down irretrievably, even if facts of case do not provide ground in law on which divorce could be granted. 14. In the judgment reported in VISHNU DUTT SHARMA v. MANJU SHARMA ( (2009) 6 SCC 379 ), the Honourable Supreme Court refused to grant divorce on the ground of break down of marriage as it is not provided under the Hindu Marriage Act. That judgment was rendered by two Honourable Judges of the Supreme Court. In the judgments reported in VINITA SAXENA v. PANKAJ PANDIT ( (2006) 3 SCC 778 ), A.JAYACHANDRA v. ANEEL KAUR ( (2005) 2 SCC 22 ) and SAMAR GHOSH v. JAYA GHOSH ((2007) 4 SCC 411), larger Bench of the Honourable Supreme Court held that divorce can be granted on the ground of irretrievable break down of the marriage. 15. Therefore, having regard to the judgments reported in 2005 (4) CTC 287, (2006) 3 SCC 778 , (2005) 2 SCC 22 , (2007) 4 SCC 411 and 2010 (4) SCC 393 cited supra decided by the three Honourable Judges of the supreme Court granting divorce on the ground of irretrievable break down of marriage, the appellant has also proved his case for divorce on the ground of irretrievable break down of marriage. Admittedly, both the parties are living separately for more than thirty years and the marriage has become dead and no useful purpose would be achieved in keeping the marriage live. Hence, the appellant is entitled to decree of divorce on the ground irretrievable break down of marriage and substantial question of law No.2 is answered in favour of the appellant. However, it is made clear that the grant of divorce will not disentitle the respondent from claiming maintenance. Hence, the appellant is entitled to decree of divorce on the ground irretrievable break down of marriage and substantial question of law No.2 is answered in favour of the appellant. However, it is made clear that the grant of divorce will not disentitle the respondent from claiming maintenance. In the result, the judgment and decree of the lower appellate court is set aside and the second appeal is allowed.