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2015 DIGILAW 2695 (MAD)

Hari Baskar v. Easther Arockia Mary

2015-07-31

V.M.VELUMANI

body2015
JUDGMENT : V.M. Velumani, J. 1. This Civil Miscellaneous Appeal is filed to set aside the order made in IDOP. No. 30 of 2009, on the file of I Additional District Judge, Trichy, dated 23.04.2012. The appellant is the petitioner in IDOP. No. 30 of 2009, on the file of I Additional District Judge, Thiruchirappalli. He filed the IDOP for divorce, under Section 10(1)(x) of the Indian Divorce Act, 1869 to dissolve the marriage solemnised between the petitioner and the respondent on 18.08.2003, on the ground of desertion. 2. The case of the appellant is as follows: The appellant and respondent got married on 18.08.2003 at Soosaiyappar's Church, Lalgudi, Trichy District, as per Christian rites and customs. The appellant and respondent lived together at Koohor village only for three months. A male child was born in the wedlock on 04.05.2004. Till three months of marriage, the respondent was very cordial to the appellant and afterwards, she started behaving in a in-different manner and abused the appellant. In the third week of November 2003, the respondent has left the matrimonial home and went to her parents house. The appellant made several attempts, by personal visit and through third parties, asking the respondent to come and live with him, but, she declined the request of the appellant. The respondent willfully deserted the appellant. Therefore, the appellant sent a notice dated 18.02.2009, through his advocate to the respondent. The respondent's father received notice, but, no reply was sent. The respondent informed the appellant through persons known to both of them that she does not like to live with the appellant. Therefore, the appellant has filed the IDOP, for divorce. 3. The case of the respondent is as follows: The respondent filed counter statement and denied all the allegations made by the appellant. According to the respondent, even now, both the appellant and respondent loved each other. It is not correct to state that they lived as husband and wife only for two months. The respondent never behaved in a rude and in-different manner and never abused the appellant. There was a civil dispute between the parents of the appellant and respondent, with regard to irrigation of land of respondent's parents. During the pendency of dispute, marriage between the appellant and respondent was performed. The said civil dispute ended in favour of the father of the respondent. There was a civil dispute between the parents of the appellant and respondent, with regard to irrigation of land of respondent's parents. During the pendency of dispute, marriage between the appellant and respondent was performed. The said civil dispute ended in favour of the father of the respondent. The appeal filed by the father of the appellant was dismissed. When the respondent was pregnant, the appellant left the respondent at her house, for the birth of child. After the birth of child, both of them were living together in the same village. The respondent denied the allegation that she refused to go to appellant's house and live with him. The Appellant has issued notice through his counsel only at the instigation of his father and after issuance of the said notice, the appellant advised the respondent not to send any reply. At the instigation of appellant's father only, he has filed IDOP and therefore, prayed for dismissal of IDOP. 4. Before the Trial Court, the appellant examined himself as PW. 1, his father was examined as PW. 2 and one Rajeswari, Inspector of Police, All Women Police Station was examined as PW. 3 and marked 5 documents as Exs. P1 to P5. The respondent examined herself as RW. 1 and marked 4 documents as Exs. R1 to R4. 5. The Trial Court, considering the pleadings and evidence, came to the conclusion that the respondent has not deserted the appellant and dismissed the IDOP. Against the said dismissal of IDOP, the appellant has filed the present appeal. 6. The learned counsel for the appellant contended that from November 2003, the appellant has tried to convince the respondent personally and through third parties, to come and join with him in the matrimonial home. Only, when all the efforts failed, the appellant issued notice through his counsel, in the year 2009. Even after receipt of the said notice, the respondent did not come and join and did not send any reply. He also contended that even though the appellant and respondent are living in the same street, they are not living together, in the same house and the respondent is living in her parents house deserting the appellant without any reasonable cause. Non-issuance of notice from 2003 to 2009, will not be fatal to the claim of the appellant. He also contended that even though the appellant and respondent are living in the same street, they are not living together, in the same house and the respondent is living in her parents house deserting the appellant without any reasonable cause. Non-issuance of notice from 2003 to 2009, will not be fatal to the claim of the appellant. The respondent failed to prove her claim that both of them are living together as husband and wife, after birth of their child. This proves that the respondent deserted the appellant. 7. Per contra, the learned counsel for the respondent contended that the Trial Court has appreciated all the materials, evidence on record in proper perspective. The conclusion of Trial Court is valid and legal and there is no irregularity or illegality in the said order. For the above reasons, she prayed for dismissal of Civil Miscellaneous Appeal. 8. Heard the learned counsel appearing for the parties. I have carefully perused the materials on record and considered the arguments of the learned counsel on either side. 9. The points for consideration are: (i) Whether the respondent deserted the appellant without any reasonable cause? (ii) Whether appellant is entitled to decree of dissolution of marriage solemnised between appellant and respondent, on 18.08.2003? 10. According to the appellant, only for three months, the appellant and respondent were living together as husband and wife and only during that period, the relationship was cordial, after that, the respondent started to behave in a in-different manner and abused the appellant and left the matrimonial home without any valid reason and living with her parents, from November 2003. All his efforts to reconcile and live together made personally and through third parties, failed. 11. On the other hand, according to the respondent, for delivery of the child, the appellant left the respondent in her parents house and after birth of child, he did not take her to matrimonial home, due to the instigation of his father. According to the respondent, civil dispute between the father of the appellant and her parents, with regard to land dispute, ended in favour of the respondent's father. That is why the appellant filed IDOP, for divorce. 12. From the records, it is seen that the appellant issued Ex. P3-notice after six years of alleged desertion by respondent. According to the respondent, civil dispute between the father of the appellant and her parents, with regard to land dispute, ended in favour of the respondent's father. That is why the appellant filed IDOP, for divorce. 12. From the records, it is seen that the appellant issued Ex. P3-notice after six years of alleged desertion by respondent. In the said notice, the appellant had informed the respondent that he would be taking steps for judicial separation. He did not call upon the respondent to come and join in the matrimonial home. He also did not state in the notice that, he would be filing petition, for restitution of conjugal rights. Even though the appellant has alleged that he made efforts for reconciliation personally as well as through third parties, he did not examine any third parties, who tried reconciliation between them. PW. 2 is the father of the appellant. The evidence of PW. 2 was rightly rejected by Trial Court, as interested witness. The evidence of PW. 3, Sub Inspector of Police, All Women Police Station, Lalgudi, also, does not advance the case of the appellant. In Ex. P5-complaint given by the petitioner to the Inspector of Police, Lalgudi, All Women Police Station, the Sub Inspector of Police has stated that respondent informed her that she does not want to live with her husband and if all her Seethana articles are returned to her, she will not file any complaint against the appellant and she will file a case in the Court with regard to her marriage and she will abide by the order of the Court. The Trial Court rejected Ex. P5, on the ground that it is a report of Sub Inspector of Police, recording the statement of respondent and it is not binding on a Civil Court. The said conclusion, is as per law. 13. The appellant has not examined any independent witness to show that in spite of repeated efforts, the respondent refused to come and join him in the matrimonial home. The appellant has not proved by any acceptable evidence, that the respondent without any valid reason has deserted him. The said conclusion, is as per law. 13. The appellant has not examined any independent witness to show that in spite of repeated efforts, the respondent refused to come and join him in the matrimonial home. The appellant has not proved by any acceptable evidence, that the respondent without any valid reason has deserted him. On the other hand, the respondent has stated that since the civil dispute between the father of the appellant and father of the respondent ended in favour of the respondent's father, the appellant has not come and taken her to the matrimonial home after the birth of child. The appellant has failed to take respondent to the matrimonial home only at the instigation of his father. 14. This contention of counsel for respondent, has considerable force and I am inclined to accept the same. The Trial Court has considered all the materials on record in the proper perspective and dismissed IDOP. No. 30 of 2009 giving valid reasons. There is no infirmity or irregularity in the order of the Trial Court, warranting interference by this Court. In the result, the Civil Miscellaneous Appeal is dismissed and the order passed by the learned I Additional District Judge, Thiruchira-palli in IDOP. No. 30 of 2009, dated 23.04.2012, is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.