Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 1143 (MAD)

S. Tamilarasi v. A. Ashokan

2017-04-19

R.SUBRAMANIAN

body2017
JUDGMENT : The wife, who suffered a decree for divorce on the ground of desertion, has come forward with this appeal. 2. The parties got married on 04.07.1988 and after the said wedlock, a girl child, namely, Sangamithra was born on 26.08.1989. The respondent/husband belongs to Kulithalai and hence, the spouses settled at Kulithalai after the marriage. 3. It is claimed by the respondent/husband that the appellant/ wife left the matrimonial home along with the minor daughter on 26.04.1992 and never returned for more than 2 + years. Therefore, a notice was issued on 21.11.1994 claiming that the appellant/wife deserted him, to which, the appellant/wife sent a reply on 02.12.1994. Thereafter, the respondent/husband issued a rejoinder on 19.12.1994, for which, the appellant/wife sent a reply on 25.01.1995. 4. The respondent/husband appears to have filed H.M.O.P.No.69 of 1995 seeking divorce on the ground of desertion and also filed G.W.O.P.No.28 of 1996 on the file of the District Court, Thiruchirappalli, for the custody of the female child. The appellant/wife filed M.C.No.5 of 1996 before the Judicial Magistrate No.2, Tirupattur, under Section 125 of the Code of Criminal Procedure, claiming maintenance for minor daughter. There was an understanding between the parties and all those proceedings were withdrawn by the parties. Despite withdrawal, since the appellant/wife did not join the respondent/husband, he filed H.M.O.P.No.35 of 1998 for divorce on the ground of desertion. 5. The said application was resisted by the appellant/wife contending that she never had animus to desert the respondent/husband. She had gone to Tirupattur on 26.04.1992 only to see her ailing father with the permission of her husband and she was dropped by the cousin of her husband at Tirupattur. According to her, the claim of the respondent/husband that she had deserted wilfully without any reasonable cause is denied by the appellant/wife. 6. The learned trial Judge concluded that there was no wilful desertion and on the said finding, dismissed the petition for divorce. 7. On appeal, the learned appellate Judge, namely, Principal District Judge, Karur, reversed the judgment and decree of the trial Court and granted divorce. 8. As against the said judgment and decree granting divorce, the appellant/wife has come forward with this appeal. 9. 7. On appeal, the learned appellate Judge, namely, Principal District Judge, Karur, reversed the judgment and decree of the trial Court and granted divorce. 8. As against the said judgment and decree granting divorce, the appellant/wife has come forward with this appeal. 9. The following substantial questions of law were framed at the time of admission of this appeal: “(1) Whether the lower appellate Court is right in granting divorce contrary to Sec.23 of the Hindu Marriage Act? and (2) Whether the lower appellate Court ought not to have appreciated that the filing of the petition for divorce on the grounds of desertion and cruelty in H.M.O.P.No.69 of 1995 on the very same ground would bar the present application?? 10. I have heard Mr.S.Ramesh, learned Counsel for the appellant/wife and Mr.K.Govindarajan, learned Counsel for the respondent/husband. 11. Mr.S.Ramesh, learned Counsel for the appellant/wife would contend that the respondent/husband has not discharged the burden of proof that the wife had deserted him without any reasonable cause. The question of reasonable cause would also depend on the subsequent conduct of the appellant/wife. Even assuming that she left the matrimonial house to attend her ailing father on 26.04.1992, she never returned to the matrimonial house till notice was issued on 21.11.1994 and the respondent/husband filed H.M.O.P.No.69 of 1995 before the Sub Court, Kulithalai, seeking divorce on the same ground. 12. It is claimed by the appellant/wife that there was a Panchayat at Tirupattur and the respondent/husband agreed to shift to Tirupattur and live with her at Tirupattur. This is stoutly denied by the respondent/husband, though he admits the Panchayat. According to the respondent/husband, since the appellant/wife had agreed to join him, he had withdrawn H.M.O.P.No.69 of 1995 as well as G.W.O.P.No.28 of 1996 filed by him. Even after the withdrawal, the appellant/wife has not chosen to join him. 13. It is also on record that the appellant/wife sought for employment and in fact, secured employment as a Teacher in a Government School at Tirupattur and she has been working there. No attempt has been made by the appellant/wife to join the respondent/husband either at Kulithalai or at Valparai, where the respondent/husband joined as a P.G.Assistant. 14. The fact that appellant/wife insisted that the respondent/ husband should join her at Tirupattur itself would justify the claim of the respondent/husband that she had deserted him with an intention to stay at Tirupattur permanently. 15. 14. The fact that appellant/wife insisted that the respondent/ husband should join her at Tirupattur itself would justify the claim of the respondent/husband that she had deserted him with an intention to stay at Tirupattur permanently. 15. The appellant/wife has not complained that she had left the matrimonial house due to cruelty or any other valid reason. She claimed that she went to attend her ailing father at Tirupattur. 16. The lower appellate Court has adverted to the entire evidence and has found that the wife's intention only to live at Tirupattur and not to join the respondent/husband at Kulithalai and her conduct in applying and obtaining a Government job at Tirupattur as well as continuous refusal to join her husband, were taken as indicators of the fact that she does not mind living alone. 17. On the other hand, the respondent/husband had made several attempts to make the appellant/wife to join him at Kulithalai and all those attempts have consistently rebuked by the appellant/wife. Hence, I do not find any perversity in the appreciation of evidence by the lower appellate Court. 18. On the first substantial question of law framed, it is seen that the Lower Appellate Court had found that it was the wife who had deserted the husband and the husband is not taking advantage of his own and therefore, the decree granted is strictly in conformity with Section 23(1)(a) of the Hindu Marriage Act. 19. On the second substantial question of law framed, it is seen that the proceedings in H.M.O.P.No.69 of 1995 were not decided on merits and it was only withdrawn and the subsequent continuous desertion would definitely give a cause of action to seek divorce on the ground of desertion and therefore, there is no question of res judicata or bar for filing second application. Both the substantial questions of law are answered against the appellant/wife. 20. In the result, this Civil Miscellaneous Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected civil miscellaneous petition is dismissed.