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2011 DIGILAW 4391 (MAD)

ANTONY ALEX RAVI v. ANTON PORSELVI

2011-11-01

T.MATHIVANAN

body2011
JUDGMENT : T. Mathivanan, J. Challenge is made in this appeal to the order of dismissal, dated 30.01.2009 and made in I.D.O.P.No.3 of 2004, on the file of the learned Principal District Judge, Thoothukudi. 2. The appellant herein is the petitioner in the original petition, whereas, the respondents herein are the respondents herein. 3. The second respondent is said to be the paramour of the first respondent, with whom the first respondent is alleged to have been leading a adulterous life. The appellant herein has filed a petition in I.D.O.P.No.3 of 2004, under Section 10(1)(i)(ix) of the Indian Divorce Act, seeking the relief of dissolving the marriage between the appellant and the first respondent solemnized on 05.07.2007 at Alagappapuram Street Antony's Church. It is also admitted fact that both the appellant and first respondent lived at Thoothukudi as husband and wife. Their marital relationship started to erode when the first respondent began to handover her salary to her parents. It is obvious to note here that the appellant and the first respondent have been working as Teachers. Both of them are the earning members. On account of the matrimonial tiff, from December 1998 onwards, the first respondent had left the matrimonial home and deserted the appellant completely. 4. The appellant was constrained to issue a legal notice to the first respondent on 29.10.1999 and after receiving that notice, the first respondent had also given a reply notice, dated 08.11.1999. Thereafter, on 13.01.1999, the first respondent preferred a compliant before the All Women Police Station, Tirunelveli and based on that complaint, both the appellant and first respondent were called to the police station and they were persuaded and in consequent thereof, a compromise was effected and thereafter both of them had been leading their family life at Nazereth, in the place of the first respondent. Out of their wedlock, the first respondent had delivered a female child on 17.07.2001. As it appears from the averments of the affidavit, right from the date of delivery, the first respondent has deserted the appellant and she never evinced any interest in joining with the appellant. Under these circumstances, the appellant was constrained to file a petition in I.D.O.P.No.3 of 2004 under Section 10(1)(i)(ix) of the Indian Divorce Act for the relief of dissolving the marriage of the first respondent on the ground of adultery and desertion. 5. Under these circumstances, the appellant was constrained to file a petition in I.D.O.P.No.3 of 2004 under Section 10(1)(i)(ix) of the Indian Divorce Act for the relief of dissolving the marriage of the first respondent on the ground of adultery and desertion. 5. The first respondent has chosen to file a counter before the trial court and in her counter, she has controverted the allegations levelled against her in the petition. The second respondent remained ex-parte before the trial court. 6. In order to substantiate their respective cases, both the appellant and first respondent went for trial and the appellant had examined himself as P.W.1 and one Thiru.U.Ramasamy was examined as P.W.2. During the course of their examination, Ex.P1 to Ex.P6 were marked. On the other hand, on the side of the respondents, the first respondent was examined as R.W.1 and no exhibits were marked. 7. On evaluating the evidence both oral and documentary, the learned Principal District Judge, Tuticorin has proceeded to dismiss the petition on the ground that the allegation of adultery as well as the desertion, were not proved. Challenging the order of dismissal, the appellant being the petitioner in the original petition has approached this Court by way of this appeal. 8. When the appeal came up for hearing, the respondents 1 and 2 despite service of notice on them, have not chosen to appear either in person or through their respective counsels and the Registry is directed to verify whether any learned counsel has entered appearance on behalf of the respondents and on compliance of the directions of this Court, the Registry after verifying the records, said that no counsel has entered appearance on behalf of the respondents. Hence the appeal is directed to be listed on today i.e., on 01.11.2011. Even today, when the appeal came up for hearing, respondents 1 and 2 had never chosen to appear and hence, there is no other option for this Court excepting to dispose of the appeal in the absence of the respondents. 9. Mr. S. Muthalraj, learned counsel for the appellant has submitted that from the inception of their marriage, the first respondent started disrespecting the appellant and abusing him in unparliamentary words. He has also submitted that the appellant had initiated several steps to bring the first respondent to the matrimonial home for the purpose of leading a peaceful married life. 9. Mr. S. Muthalraj, learned counsel for the appellant has submitted that from the inception of their marriage, the first respondent started disrespecting the appellant and abusing him in unparliamentary words. He has also submitted that the appellant had initiated several steps to bring the first respondent to the matrimonial home for the purpose of leading a peaceful married life. All his effects ended in futile. While advancing his arguments, Mr. S. Muthalraj, learned counsel for the appellant has made a reference to the testimony of P.W.2, who is none other than the friend of the appellant. In his evidence, P.W.2 has deposed that in the month of July 2002, at about 5.00 p.m., he had been to the house of the second respondent along with the appellant to persuade him to arrive at a settlement between the appellant and the first respondent. When he was knocking at the door, the second respondent had emerged after opening the door and behind him the first respondent was also found standing in Nighty. In this connection, Mr. S. Muthalraj, the learned counsel for the appellant would submit that the presence of the first respondent along with the company of the second respondent that too in the house of the second respondent at 5.00 p.m. would go to draw inference, as alleged by the appellant, that she had been leading a adulterous life with him, which forced the appellant to file the original petition for dissolving their marriage. He has also submitted that even after the service of notice in this appeal on the first and second respondents, they have not chosen to appear and as observed by the Apex Court in the case of Adivekka and others vs. Hana Mavvea Venkatesh reported in AIR 2007 SC 2025 , an adverse inference could very well be drawn against the respondents saying that the allegations made by the appellant that the first respondent has been leading an adulterous life with the second respondent are true and apart from this, he has also placed reliance upon the decision in the case of Binod Anand Lakra vs. Smt. Lelulah Lakra and another reported in AIR 1982 Patna 213 in support of his arguments. In this case, the Apex Court has held that the standard of proof of adultery in a petition for divorce is not as strong as in a criminal case. In this case, the Apex Court has held that the standard of proof of adultery in a petition for divorce is not as strong as in a criminal case. It is also further held that the proof with regard to adultery beyond all reasonable doubts is not required. 10. On perusal of the order of the trial court, the learned Principal District Judge, Thoothukudi has not satisfied with the evidence of P.W.2 and it is apparent from the records that from the date of delivery of a female child, i.e., from 17.07.2001 till date, the first respondent is found to have deserted the appellant. There is no contra evidence adduced on behalf of the respondents 1 and 2 to disprove these contentions. Having regard to the related facts and circumstances and on appreciating the evidence available on record, this Court is of the considered view that the finding of the learned Principal District Judge, Thoothukudi is perverse and the order of dismissal has been passed without approaching the real issue with proper perspective. Under the above said circumstance, this Court is of the firm view that the appeal deserves to be allowed and the order of the trial court, dated 30.01.2009 is liable to be set aside. 11. In the result, the appeal is allowed and the order, dated 30.01.2009 and made in I.D.O.P.No.3 of 2004, on the file of the learned Principal District Judge, Thoothukudi is set aside and the petition in I.D.O.P.No.3 of 2004 is allowed as prayed for. However, there is no order as to costs.