Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4553 (MAD)

S. Gajendran v. Bhuvaneswari

2018-12-19

T.RAVINDRAN

body2018
JUDGMENT : 1. The civil miscellaneous second appeal is preferred impugning the Judgment and Decree, dated 22.04.2008, passed in C.M.A.No.43 of 2007, on the file of the Principal District Court, Tiruchirappalli, confirming the Judgment and Decree, dated 24.01.2007, passed in H.M.O.P.No.154 of 2004, on the file of the Principal Subordinate Court, Tiruchirappalli. 2. The parties are referred to as per the rankings in the Trial Court for the sake of convenience. 3. Shorn of unnecessary details, it is seen that the petitioner has come forward with the original petition seeking divorce against the respondent, on the ground of desertion. 4. According to the petitioner, the respondent is his wife and their marriage was solemnized on 20.05.1994 and thereafter, they lived together as husband and wife for sometime and inasmuch as the respondent went to her parents house and did not return back, he had been forced to levy H.M.O.P.No.103 of 1996 for divorce against the respondent, on the grounds of cruelty and desertion. Thereafter, following the negotiation and mediation between the parties, the petitioner and the respondent agreed to live together and accordingly, the respondent has been living with the petitioner from March, 2001 and out of the wedlock, a male child was born and further stated that though the respondent again went to her parents house in the month of July, 2001, thereafter, did not return back to him and consequently, he had issued a notice calling upon the respondent to come and live with him and also withdrawn H.M.O.P.No.103 of 1996 laid by him on 13.11.2003 and thereafter, preferred the present original petition against the respondent for divorce, on the ground of deserting him wilfully. 5. The respondent resisted the petitioner's case stating that on account of the dowry demand made by the petitioner and as she was unable to satisfy the same, she was driven out of the matrimonial home and the respondent further alleged that thereby, the petitioner had ill-treated her cruelly and thereby, she has been forced to live separately and therefore, contended that despite she had left to her parents home for delivery, thereafter, the petitioner had not evinced interest to take her back from her parents house and therefore, it is put-forth that the petition for divorce laid by the petitioner is devoid of merits and liable to be dismissed. 6. 6. The Courts below, on a consideration of the materials placed on record by the petitioner and the respondent, both oral and documentary, were pleased to dismiss the case preferred by the petitioner. Aggrieved over the same, the present civil miscellaneous second appeal has been preferred by the petitioner. 7. From the materials placed on record, it is seen that the case of the petitioner is that the respondent had left the matrimonial home during the month of July, 2001 and thereafter, did not return back and on that footing he seeks divorce, on the ground of desertion. However, as could be gathered from the facts and circumstances of the case, it is found that at that point of time, the respondent had left to her parents house for delivery. Therefore, the case of the petitioner that the respondent had voluntarily left the matrimonial home, without any rhyme or reason, as such, cannot be countenanced. 8. As determined by the Courts below, when the petitioner has come forward with the case that the respondent has separated from him voluntarily without justifiable cause, it is for the petitioner to establish the above said case, particularly, when the respondent has put forth the case that only on account of sound reasons, she had been forced to live separately, as according to her, on account of the cruel behaviour of the petitioner against her for not satisfying the dowry demand, she has been forced to live separately. 9. Earlier, it is seen that the petitioner had levied a divorce case against the respondent, on the ground of cruelty and desertion in H.M.O.P.No.103 of 1996, but, thereafter, the parties again reunited and it is found that when they endeavoured to carry on the marital life, the respondent got conceived and went to her parents house for delivery. Though it has been admitted that the respondent had reunited with him even during March, 2001 itself, on facts it is seen that the petitioner had chosen to withdraw the earlier H.M.O.P., laid by him only on 13.11.2003, this itself would go to show the conduct of the petitioner in not carrying the matrimonial life harmoniously with the respondent one way or the other and on the other hand, kept pending the H.M.O.P., preferred by him without withdrawing the same with a view to achieve his objects one way or the other. 10. 10. When from the materials placed on record, it is found that the respondent has left the matrimonial home only for delivery and not with an intention to put an end for the marital life as put-forth by the petitioner, accordingly, it is seen that if really, the petitioner intended to carry on the marital life with the respondent sincerely as a good husband, he should have endeavoured to take all steps to bring back the respondent from her parents house for the purpose of joining with him. On the other hand, it is seen that no effort, as such, has been made by the petitioner to take her back from her parents house, after delivery and thus, it is seen that accordingly, inasmuch as the petitioner's intention is not to live with the respondent peacefully, had not chosen to withdraw the earlier H.M.O.P., preferred by him immediately, despite the parties having reunited together, but belatedly had withdrawn the same in the month of November, 2003. Therefore, the argument putforth by the petitioner's counsel that the respondent had separated herself voluntarily, without sound cause, from the matrimonial home, as such, cannot be readily accepted. 11. Though it is also contended that the respondent is not eager and showing any interest in the sexual life by the petitioner, however, when the said fact has been controverted by the respondent and when there is no material placed on the part of the petitioner to establish the same, the abovesaid ground projected by the petitioner for seeking divorce, as the reason for the respondent leaving the matrimonial home voluntarily, as such, cannot be accepted. Inasmuch as the parties had been running the matrimonial life peacefully and at one point of time, it is found that the respondent also gave delivery to a child and in such view of the matter, the plea of the petitioner that the respondent is not eager and showing any interest in the sexual life, as such, cannot be readily countenanced. 12. Only on the petitioner establishing that the respondent had voluntarily separated herself from the matrimonial home, despite his intention and willingness to reunite with her and also thwarted the steps initiated by him for reunion with her, in that circumstances, he would be entitled to seek the relief of divorce on the ground of desertion. 12. Only on the petitioner establishing that the respondent had voluntarily separated herself from the matrimonial home, despite his intention and willingness to reunite with her and also thwarted the steps initiated by him for reunion with her, in that circumstances, he would be entitled to seek the relief of divorce on the ground of desertion. On the other hand, when the conduct of the petitioner as above noted would go to show that he has been not really leading the matrimonial life with the respondent harmoniously and keeping the pendency of the earlier H.M.O.P., as a trump card in his favour and despite the respondent having left to her parents house for delivery, not chosen to get her back for leading the marital life, all would go to show that there is no voluntary separation of the respondent from the petitioner and on the other hand, inasmuch as the petitioner had forced the respondent to live separately and also not evinced interest to get her back to his home, it is found that on account of the cruelty inflicted upon the respondent by the petitioner, she has shown hesitance and fear in joining with the respondent for leading the marital life. Therefore, as rightly determined by the Courts below, on account of the cruel behaviour of the petitioner, it is found that the respondent has been forced to live separately and despite the same, inasmuch as the petitioner has not at all shown any inclination to take her back to his house either by approaching her independently or through his relatives or mediators one way or the other and on the other hand, he is found to be taking advantage of his own follies as above discussed, in such view of the matter, the plea put forth by the petitioner that the respondent had deserted him and therefore, he is entitled for divorce, as such, has been rightly turned down by the Courts below. 13. Lastly, it is contended by the petitioner's counsel that it could be seen from the conduct of the parties that there is no inclination between them to lead the matrimonial life and their matrimonial life has become irretrievably broken down, hence, the petitioner is entitled to the dissolution of the marriage with the respondent. 13. Lastly, it is contended by the petitioner's counsel that it could be seen from the conduct of the parties that there is no inclination between them to lead the matrimonial life and their matrimonial life has become irretrievably broken down, hence, the petitioner is entitled to the dissolution of the marriage with the respondent. However, as rightly put forth by the respondent's counsel, considering the age of the parties, merely because they had been living separately for one reason or the other and in the marital life, the difference is bound to occur between the couple, nevertheless, they should endeavour to resume the matrimonial life magnanimously, so to conclude that the resumption of the marriage life between the estranged couple is impossible, should not be acceded to, in such view of the matter, in my considered opinion, the above said contention of the petitioner's counsel cannot be a justifiable conclusion for annulling the marriage between the couple and accordingly, it is seen that the above said argument of the petitioner's counsel has also been rightly discountenanced by the Courts below. 14. For the reasons afore stated, no justifiable and valid cause has been projected by the petitioner for interfering with the concurrent Judgments of the Court below in dismissing the divorce case preferred by the petitioner. Accordingly, no substantial question of law is found to have involved in the civil miscellaneous second appeal. 15. Resultantly, the civil miscellaneous second appeal is dismissed. No costs. No costs.