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2012 DIGILAW 3622 (MAD)

E. B. Mary Raveena v. Antony Ravikumar

2012-08-17

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- 1. This Appeal arises out of an order of dismissal (09.01.2011) passed by the trial court/Principal Judge, Family Court, Chennai, in F.C.O.P.No.1454 of 2010 filed by appellant herein seeking divorce on the ground of cruelty and desertion under section 10(1)(ix) and (x) of the Divorce Act, 1869. 2. Case of the appellant, in brief, is as follows: Appellant is the wife of respondent. The marriage between the parties was solemnised on 28.05.2004 at Arcot Luthran Church, Cuddalore according to Christian rites and customs and was duly entered in the Register. They had been living together as husband and wife in the respondent's house for a a period of six months. Thereafter, the attitude of respondent became changed. Respondent's parents used to beat the appellant and used to scold her frequently in the presence of others and she was ill-treated by respondent and his family members both physically and mentally. The appellant was hoping that the respondent would change his attitude. But things were getting worst day by day. Respondent used to come at late night in a drunken state. He grew wild and stated that from the very beginning he disliked the appellant and is not interested in marital life at all. Respondent avoided the relationship with the appellant and thereby he has not fulfilled his marital obligations. Finally, the respondent had driven the appellant out of the matrimonial house and she is leading a miserable life. They have no issues. Hence, the appellant filed the present petition for divorce on the ground of desertion and cruelty. 3. Resisting the said case, respondent filed a counter admitting the marriage between them and they lived as husband and wife. The marriage was consummated; but it is false to state that the respondent and his parents ill-treated the appellant. The parents of the respondent were find affectionate and attached to the appellant as she is a close relation of them even before the marriage. The respondent has also denied the allegation of the appellant that after six months from the date of marriage, his attitude was changed and used to beat her and ill-treated the appellant both physically and mentally. Appellant did not show any attachment towards the respondent right from the marriage and she did not behave as a dutiful wife. The respondent has also denied the allegation of the appellant that after six months from the date of marriage, his attitude was changed and used to beat her and ill-treated the appellant both physically and mentally. Appellant did not show any attachment towards the respondent right from the marriage and she did not behave as a dutiful wife. After marriage, the appellant used to part company with the respondent and often used to go to her family house. She used to pick up quarrels with the respondent frequently. It is absolutely false to state that the appellant was beaten violently and frequently and also he used to come late in the night with intoxication. The appellant within three months from the date of marriage used to often leave the company of the respondent and she used to come again after the respondent requested her to come and live with him. Finally, after three months, she left the respondent's house without any valid reason. She came to the house of the respondent 1-1/2 years after the death of her father and lived separately in the rear portion of house without mingling with anyone including the respondent. After five months, she demanded her jewels from the respondent and left the matrimonial house without informing to anyone and thus, intentionally deserted the respondent. The respondent is always ready and willing to join with her. Hence, he prayed for the dismissal of the petition on the ground that the appellant has failed to establish the allegations of desertion and cruelty made in the petition. 4. In order to prove the case, the appellant examined herself as P.W.1 and marked three documents as Exs.P-1 to P-3 and on the side of the respondent, he examined himself as R.W.1, but not filed any document. The trial court, after analysing the entire evidence both oral and documentary, dismissed the petition. Feeling aggrieved, the present appeal has been filed. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. It is the submission of the learned counsel for the appellant-wife that the claim petition was filed on two grounds, (i) desertion and (ii) cruelty. The marriage between the parties took place on 28.05.2004 and immediately after six months, appellant was driven out from the matrimonial house and thereafter, she was living separately. 6. It is the submission of the learned counsel for the appellant-wife that the claim petition was filed on two grounds, (i) desertion and (ii) cruelty. The marriage between the parties took place on 28.05.2004 and immediately after six months, appellant was driven out from the matrimonial house and thereafter, she was living separately. Under such circumstances, the court below ought to have granted decree of divorce on the ground of desertion. So far as the ground of cruelty is concerned, appellant has categorically stated in her evidence that she was beaten by her husband very frequently and she was ill- treated by the family members of the respondent physically and mentally and she was denied the conjugal relationship and thereby the respondent has not fulfilled the marital obligations. Therefore, by considering the evidence of P.W.1, the trial court ought to have granted decree of divorce on the grounds of desertion and cruelty. 7. Learned counsel for respondent/husband made his submissions supporting the order passed by the trial court. 8. Keeping in mind the submissions made by both sides, we have carefully gone through the materials available on record. There is no dispute about the marriage and thereafter, both parties lived together as husband and wife for six months. On a perusal of the evidence of P.W.1, we find, P.W.1 had stated in her evidence that she was driven out of the matrimonial house in June, 2007. The original petition was filed for divorce on the ground of desertion in November 2007 i.e.within a period of five months from the date on which she was said to have been driven out from the matrimonial house. As per section 10(10) of the Indian Divorce Act, for dissolution of marriage on the ground of desertion, there should be at least two years period of desertion immediately preceding the presentation of the petition. But, in the instant case, we find that only a period of five months was available between the date on which the appellant was allegedly driven out of the matrimonial house and the date of presentation of the petition. Therefore, even according to the allegations of the appellant, the mandatory period of two years was not available in this case for claiming divorce on the ground of desertion. Therefore, even according to the allegations of the appellant, the mandatory period of two years was not available in this case for claiming divorce on the ground of desertion. For getting a decree of divorce on the ground of desertion, the appellant has to establish that there was desertion for continuous period of two years immediately preceding the presentation of the petition. But, in the instant case, as observed above, there was no desertion for two years even as per the averments made in the petition by the wife. Therefore, we are of the opinion that the appellant has not made out a case for a decree of divorce on the ground of desertion. 9. So far as the ground of cruelty is concerned, we find that the appellant had categorically stated in her evidence that her husband was a drunkard and she was tortured physically by the respondent and his brother and not to tolerate the same, she was made to run away to save her life and she came to Chennai and took shelter in Mercy Divine Retreat Centre at Gummidipoondi for 10 days in the year 2007 and thereafter, she took shelter in Central Railway Station for 10 days to save her life. This piece of evidence of P.W.1 was not challenged in her cross examination. In fact, in the elaborate cross examination of P.W.1, the only ground of desertion was mainly challenged by the respondent. Further more, on a perusal of the evidence of R.W.1, we find that after marriage, the life of the appellant was not in smooth and there were frequent quarrels between the parties; however, from the allegations and counter allegations of the parties, we find that right from the date of marriage, there was a denial of conjugal relationship between the parties. Therefore, though mental cruelty is difficult to establish by direct evidence, from the factual aspects of the case, it could be safely inferred that the appellant was suffering from mental cruelty. Therefore, on the ground of cruelty, she is entitled for decree of divorce. For the reasons stated above, the Civil Miscellaneous Appeal is allowed and the order passed by the trial court (09.01.2011) is set aside and the petition for divorce is allowed on the ground of cruelty. However, there will be no order as to costs.