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2019 DIGILAW 2295 (MAD)

S. Sivakumar v. C. Sumathi

2019-09-05

J.NISHA BANU

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JUDGMENT : J. Nisha Banu, J. 1. These appeals have been filed by the appellant/husband challenging the common judgment passed by the first appellate Court in C.M.A. Nos. 36 and 64 of 2009, whereby and whereunder the first appellate Court has set aside the order passed by the trial Court granting divorce on the ground of desertion to the appellant/husband and dismissed H.M.O.P. 2. For better appreciation and understanding, the parties are referred to as per their rank before the trial Court. As the issue involved in both the second appeals are interrelated to each other, they heard together and are being disposed of by way of this common judgment. 3. The petitioner/husband has filed H.M.O.P. No. 239 of 2004 for divorce. 4. The brief facts of the case of the petitioner/husband are as follows: The marriage between the petitioner and the first respondent was solemnized on 04.02.2001 as per Hindu rites and custom. At the time of marriage, the first respondent came with totally 7 sovereigns of gold jewels and the petitioner presented 9-1/2 sovereigns of Thali chain to her. After few days from marriage, the first respondent expressed that she was not interested to marry the petitioner and she married the petitioner due to compulsion of her parents. The first respondent/wife lived with the petitioner in the matrimonial home for a period of one week. Thereafter, they went to the respondent's parents' house. The first respondent did not come back and live with the petitioner. The respondent quarrelled with the petitioner and threatened that she will commit suicide. A panchayat was conducted. On 19.01.2002 the petitioner brought the first respondent to his house and the first respondent stayed there till 04.02.2002. During that stay also, she quarrelled with the petitioner and went to her parent's home. In the last week of April 2002, the respondent voluntarily returned back to matrimonial home and lived with the petitioner. Thereafter, she quarrelled with the petitioner and left the matrimonial home on 08.06.2002. The petitioner met with an accident on 12.02.2003 and took treatment. But the first respondent was never concerned about the petitioner and never turned up to see the petitioner. Further, for his business purpose, the petitioner had to stay at Champa, near Raipur. The first respondent refused to come and live with the petitioner there. The petitioner met with an accident on 12.02.2003 and took treatment. But the first respondent was never concerned about the petitioner and never turned up to see the petitioner. Further, for his business purpose, the petitioner had to stay at Champa, near Raipur. The first respondent refused to come and live with the petitioner there. On 04.04.2004, the 2nd respondent called the petitioner over phone and met him on 05.04.2004. On 05.04.2004, the 2nd respondent informed the petitioner that he had an intimacy with the 1st respondent. The 2nd respondent also handed over a diary affixed with a photograph of the first respondent. On 05.04.2004, the petitioner lodged a Police complaint. According to the petitioner, the family members of the first respondent used to abuse the petitioner and beat the petitioner. The 1st respondent deserted the petitioner from 08.06.2002. The petitioner submit that due to the above stated reason, it is not possible for the petitioner to live with the first respondent. Hence, he has filed the petition for divorce. 5. The brief facts and case of the first respondent/wife are as follows: The first respondent/wife admitted the marriage. The 2nd respondent is an imaginary person. The first respondent has no intimacy with the 2nd respondent. The first respondent has not stated that she married the petitioner on compulsion. The allegations that the first respondent used to quarrel with the petitioner often and threatened him by saying that she will commit suicide and the first respondent used to go to her parent's house often are all denied as false. The father of the respondent is maintaining a diary and it will show the true events. Soon after the marriage the family members of the petitioner began to harass the respondent demanding dowry. The petitioner never objected his parents demanding dowry. The petitioner was always on tour outside the Tamil Nadu. When the petitioner was sick, the first respondent was not informed of it. On 20.04.2003 the petitioner's maternal aunt and his brother Saravanan came to the house and demanded a letter from the respondent consenting for divorce. The petitioner kicked the respondent's father and so he gave a complaint. Against the demand of dowry, the first respondent has lodged a complaint. On 20.04.2003 the petitioner's maternal aunt and his brother Saravanan came to the house and demanded a letter from the respondent consenting for divorce. The petitioner kicked the respondent's father and so he gave a complaint. Against the demand of dowry, the first respondent has lodged a complaint. The petitioner is not interested in living with the first respondent and therefore, he has filed the petition with false and baseless allegations and therefore, she prayed for dismissal of the above petition. 6. Before the trial Court, on the side of the petitioner/husband, the petitioner himself was examined as PW1 and the uncle of the petitioner was examined as PW2 and Exs. P1 to P6 were marked. On the side of the respondents, the first respondent/wife herself was examined as RW1 and Exs. R1 to R3 were marked. 7. The trial Court, after hearing both sides, has granted divorce on the ground of desertion and dismissed the HMOP on the ground of adultery and cruelty. Aggrieved by the grant of divorce on the ground of desertion, the respondent/wife filed C.M.A. No. 36 of 2009. Aggrieved by the rejection of HMOP on the ground of adultery and cruelty, the petitioner/husband has filed C.M.A. No. 64 of 2009. The first appellate Court, after hearing both sides, has allowed the appeal filed by the respondent/wife, thereby dismissed the order passed by the trial Court and also H.M.O.P. The first appellate Court has dismissed the appeal filed by the petitioner/husband. Aggrieved by the same, the petitioner/husband has filed these appeals. 8. At the time of admission, the following question of law was framed for consideration: "1. Whether the judgment and decree of the lower appellate Court is in conformity with Order 41 Rule 31 of C.P.C. wherein the lower appellate Court has not framed necessary issues for determination and failed to render finding on each issue separately?" 9. Considering the issue involved in these appeals and also considering the submissions of the learned counsel for both sides, the following question of law was also taken into account for consideration: "2. Whether the lower appellate Court is justified in holding that irretrievable break down of the marriage is not valid ground to grant divorce?" 10. Considering the issue involved in these appeals and also considering the submissions of the learned counsel for both sides, the following question of law was also taken into account for consideration: "2. Whether the lower appellate Court is justified in holding that irretrievable break down of the marriage is not valid ground to grant divorce?" 10. The learned counsel appearing for the petitioner/husband submitted that after marriage on 04.02.2001, the respondent/wife frequently left the matrimonial home and stayed in her parental home and from 08.06.2002, the respondent deserted the petitioner/husband and permanently stayed in her parental home. The trial Court, after considering the long desertion, has rightly granted the decree of divorce on the ground of desertion. But, the first appellate Court, without considering the above aspect properly, has erroneously set aside the order passed by the trial Court. He would further submit that the respondent/wife used to ill-treat the petitioner and the parents of the respondent also attacked the petitioner and ill-treated him, thereby they caused cruelty to the petitioner/husband. The first respondent has also committed the act of adultery with the 2nd respondent and the 2nd respondent himself informed the same to the petitioner and to that effect, the 2nd respondent has also produced a diary affixed with the photograph of the first respondent and the same has also been produced before the Court as Ex. P3. Both the Courts below, without considering above aspects, have dismissed the HMOP petition on the ground of cruelty and adultery. Thus, he prayed to set aside the judgment passed by the first appellate Court and grant divorce on the grounds of desertion, cruelty and adultery. 11. The learned counsel appearing for the first respondent/wife submitted that as rightly held by the first appellate Court, the long desertion is not a ground for divorce. But, the trial Court, without considering the above aspect, has erroneously granted the decree of divorce on the ground of desertion. But, the first appellate Court, after considering the above aspect, has rightly set aside the order passed by the trial Court and dismissed HMOP and the same need not be interfered with. He would further submit that both the Courts below have concurrently found that the ground of cruelty and adultery have not been proved by the petitioner/husband and therefore, the said findings need not be interfered with. Thus, he prayed to dismiss both the appeals. 12. He would further submit that both the Courts below have concurrently found that the ground of cruelty and adultery have not been proved by the petitioner/husband and therefore, the said findings need not be interfered with. Thus, he prayed to dismiss both the appeals. 12. Heard the learned counsel for both sides and perused the records carefully. 13. So far as the first question of law is concerned, it is seen that the first appellate Court has framed necessary issues and discussed the issues in detail and answered each issue. Therefore, the first question of law is answered against the petitioner/husband. 14. Now let us analyse the second question of law. Admittedly, it is not in dispute that the marriage between the petitioner and the respondent was held on 04.02.2001. The petitioner/husband has filed HMOP for divorce on the ground of cruelty, adultery and desertion. Though the respondent/wife raised various allegations against the petitioner and his family members, the respondent has not substantiated the same by producing any oral and documentary evidence. 15. So far as the ground of adultery is concerned, according to the petitioner/husband, the 2nd respondent himself appeared before him and gave the diary - Ex. P3 written by the first respondent stating that he has illegal intimacy with the first respondent and in Ex. P3 the photograph of the respondent is also affixed and as the first respondent committed adultery with the 2nd respondent, it amounts to cruelty also. Admittedly, the 2nd respondent did not appear before the Court and he has not been examined to prove the adultery. Merely because a diary affixed with photograph of the respondent has been produced, it cannot be concluded that the respondent had committed adultery with the 2nd respondent. Both the Courts below have rightly negatived the relief of divorce on the ground of adultery. This Court does not find any reason to interfere with the same. 16. So far as the ground of cruelty is concerned, according to the petitioner, the responded used to go and stay in her parental home saying that she is not interested in marriage, and the respondent and her family members abused and attacked the petitioner and the same caused mental cruelty to the petitioner and his family members. 16. So far as the ground of cruelty is concerned, according to the petitioner, the responded used to go and stay in her parental home saying that she is not interested in marriage, and the respondent and her family members abused and attacked the petitioner and the same caused mental cruelty to the petitioner and his family members. It was specifically denied by the first respondent that she did not go and stay frequently in her parental home saying that she is not interested in the marriage. She had further stated that it is the petitioner, who attacked the father of the respondent and caused injury and cruelty, for which the father of the respondent also lodged a criminal complaint before the Inspector of Police, Cantonment, Tiruchirapalli. It is seen that the petitioner has not proved his contention in proper perspective. As rightly stated by the first appellate Court, a single instance of cruelty is not sufficient to grant the decree of divorce. Hence, this Court is of the view that the dismissal of the petition for divorce on the ground of cruelty is perfectly valid and the same need not be interfered with. 17. So far as the ground of desertion is concerned, according to the petitioner, after marriage, the respondent used to go to her parental home and stay there for some week and after mediation, she will come back to the matrimonial home and from 08.06.2002, the respondent deserted the petitioner and went to her parental home. Though in the counter affidavit the respondent has denied that she has not deserted the petitioner on 08.06.2002, in the cross examination, she has specifically admitted that she deserted the petitioner from 08.06.2002. The respondent has further stated in the cross examination that the petitioner has done second marriage with some other woman and hence, she has no interest to live with the petitioner. In this case, both the parties have admitted that they met in a shop on 19.02.2004, for which it cannot be held that they lived together till 19.02.2004. Considering the same, the trial Court has granted the decree of divorce. 18. The first appellate Court has held that mere separate living for several years is not sufficient and there must be some evidence to grant decree of divorce on the ground of desertion. Considering the same, the trial Court has granted the decree of divorce. 18. The first appellate Court has held that mere separate living for several years is not sufficient and there must be some evidence to grant decree of divorce on the ground of desertion. As stated earlier, in this case, the first respondent has admitted in her cross examination that they are living separately from 08.06.2002. She has further stated that she is not interested to live with the petitioner as he has got second marriage. The petitioner also has no interest to live with the respondent. There are civil and criminal cases pending between them. Now, almost 16 years have gone from the date of desertion. As there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such cases, it may lead to mental cruelty. 19. Needless to mention that the law is only for the welfare of the people. In the matrimonial cases, when hearts unite, the law has no role to play. But, when it refuses to unite, then the Court has no option but to proceed as per the law. The applicability of law is more important in matrimonial related issues. The long separation between the husband and wife should have taught a lesson, despite the allegations levelled against each other. They should have longed for each other, though the cases are pending against them. However, this Court could not see any such improvement in this case. The learned counsel for the petitioner/husband, on instructions, submitted that the petitioner is not interested to live with the first respondent. As the parties have been admittedly living separately for more than 16 years, the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair. Therefore, this is a clear case of irretrievable breakdown of marriage. In my considered view, it is impossible to preserve or save the marriage by force or coercion. Any further effort to keep it alive would prove to be totally counterproductive. 20. Therefore, this is a clear case of irretrievable breakdown of marriage. In my considered view, it is impossible to preserve or save the marriage by force or coercion. Any further effort to keep it alive would prove to be totally counterproductive. 20. The trial Court, after considering facts and circumstances of the case, has rightly granted the relief of divorce sought for by the petitioner/husband on the ground of desertion. The first appellate Court, without considering the above, has erroneously dismissed the HMOP on the ground of desertion also. Thus, the second substantial question of law is answered in favour of the petitioner/husband. 21. In the result, C.M.S.A. No. 35 of 2010 is allowed and C.M.S.A. No. 36 of 2010 is dismissed. The order passed by the trial Court is restored. No costs.