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2021 DIGILAW 439 (MAD)

P. Aruna Devi v. M. Balasubramanian

2021-02-09

S.M.SUBRAMANIAM

body2021
JUDGMENT : (Prayer: This Civil Miscellaneous Second Appeal is filed under Section 28 of Hindu Marriage Act, r/w Section 100 of Code of Civil Procedure, against the judgment and decree dated 15th day of December 2015 passed by the District Judge at Tiruvannamalai in C.M.A.No.2 of 2013, reversing the judgment and decree dated 04.04.2013 passed by the Principal Sub Judge at Tiruvannamalai in H.M.O.P.No.76 of 2009.) 1. The Civil Miscellaneous Second Appeal is preferred against the judgment and decree dated 15.09.2015 passed by the District Judge at Tiruvannamalai in C.M.A.No.2 of 2013, reversing the judgment and decree dated 04.04.2013 passed by the Principal Sub Judge at Tiruvannamalai in H.M.O.P.No.76 of 2009. 2. The Substantial Questions of law raised by the learned counsel appearing on behalf of the appellant are as follows: (i) Whether the first appellate courts has found mental pain, agony of suffering of such a magnitude that it severs the bond between the wife and husband to dissolve the marriage held between the parties in accordance with law? (ii) Whether the First Appellate court being last fact finding authority comprehensively apprised the entire matrimonial life of the parties before dissolving the marriage on the ground of cruelty in the light of settled principles laid down by Apex Court and various High Courts? (iii) Whether the first appellate Court has preceded the burden of proof in a manner known to law? (iv) Whether the First appellate below exercised their power of discretion in accordance with the settled principles of law while decreeing suit? (v) Whether the lower appellate court being final fact finding authority is right in dealing with appeal without formulating specific issues as contemplated under Order 41 Rule 25?” 3. The marriage between the appellant and the respondent was solemnized on 27.03.2015 at Vishalatchi Thirumana Mandapam, Chetty Street, Thiruvannamalai as per the Hindu Rites and Customs. The contentions of the appellant is that the spouses were not living happily even immediately after the marriage. The respondent left the Matrimonial home and thereafter, a petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act was filed seeking Dissolution of Marriage in H.M.O.P.No.76 of 2009. 4. The trial Court adjudicated the issues and dismissed the petition for divorce filed by the respondent/husband. The respondent filed an appeal in C.M.A.No.2 of 2013. The First Appellate Court elaborately considered the facts, circumstances as well as the evidences. 4. The trial Court adjudicated the issues and dismissed the petition for divorce filed by the respondent/husband. The respondent filed an appeal in C.M.A.No.2 of 2013. The First Appellate Court elaborately considered the facts, circumstances as well as the evidences. It is contended that the respondent examined himself as PW1 and marked Ex.P1 to Ex.P3 and also one Settu examined as PW2. The appellant wife examined herself as RW1 and her mother one Kuppu examined as RW2. 5. The First Appellate Court considered the grounds raised by the appellant and the respondent. The point considered by the First Appellate Court was that whether the wife did not comply with the Matrimonial obligations as per the customs and conventions; Whether the appellant/wife had insulted the respondent/husband by stating that the respondent/husband is not capable of matrimonial life and this apart, the appellant/wife insulted the respondent/husband by using caste name. These all are the grounds raised by the respondent/husband, the First Appellate Court considered the evidence of PW1 at the time of Cross Examination and the same is as follows: 12. After hearing both sides, records were perused. A perusal of the evidence of PW1, at the time of cross examination, who would say as follows: “TAMIL” 13. A Cursory reading of the above said evidence of PW1, at the time of cross examination would reveal the fact that it was the evidence of PW1 that after the marriage for 3 days there was no conjugal relationship between the petitioner and the respondent. After 3 days only, there was a conjugal relationship. The respondent did not co-operate for conjugal relationship with the petitioner for 3 days from the date of marriage. After the conjugal relationship, the respondent had insulted the petitioner regarding his potentiality. The male organ of the petitioner was very small and it was similar to the organ of transgender and also it was the evidence of the petitioner that the respondent was not satisfied with the performance of the petitioner. Further, it was deposed by the petitioner as follows: “TAMIL” 14. A cursory reading of the above said evidence of the petitioner, would reveal the fact that the petitioner was insulted by the respondent by uttering his caste. A perusal of the evidence of RW1, at the time of cross examination, who would say as follows: “TAMIL” 15. Further, it was deposed by the petitioner as follows: “TAMIL” 14. A cursory reading of the above said evidence of the petitioner, would reveal the fact that the petitioner was insulted by the respondent by uttering his caste. A perusal of the evidence of RW1, at the time of cross examination, who would say as follows: “TAMIL” 15. A perusal of the evidence of RW2, who would say as follows: “TAMIL” A conjoint reading of the evidences of RW1 and RW2, would reveal the fact that RW1 and RW2 deposed before the Court contradicting with each other regarding the material facts that is, it was evidence of RW1 at the time of cross-examination that RW1 did celebrate the first Deepavali after marriage in the mother-in-law’s house namely petitioner’s house. But it was the evidence of RW2 contradicting the evidence of RW1 that the petitioner and the respondent had celebrated the first Deepavali after marriage in the respondent’s mother’s house. It was a vital contradiction regarding the material facts. Though it was alleged by the respondent that the petitioner and his family members were harassing the respondent demanding dowry. But no documents was produced for establishing the fact that there was a dowry harassment. It was also the admitted evidence of RW1 that RW1 was living with her mother, in her mother’s family by consent. RW2 also deposed before the court that she did not take any attempt to send RW1 to the petitioner’s house. Even the respondent did not come forward before the court of law for taking any efforts to live with the petitioner. On the other hand, the petitioner had come forward before the court as mentioned thereon seeking the relief as mentioned in this case. A perusal of Ex.P3, which was marked through RW1 at the time of cross examination that there was no specific allegation against the petitioner and the family members for harassing dowry.” 6. Strongly relying on the above portion of the evidence, the First Appellate Court reversed the judgment of the trial Court granted decree of divorce. The marriage has irretrievably broken down. The parties are living separately for many years. Strongly relying on the above portion of the evidence, the First Appellate Court reversed the judgment of the trial Court granted decree of divorce. The marriage has irretrievably broken down. The parties are living separately for many years. The First Appellate Court mainly considered the fact that the appellant/wife had not fulfilled the Matrimonial obligations, which resulted separation and under these circumstances, this Court do not find any perversity or infirmity as such with reference to the findings as well as the judgment of the First Appellate Court. Further, the spouses are living separately for many years and under these circumstances, this Court is not inclined to accept the grounds raised in the present Civil Miscellaneous Second Appeal. 7. This apart, the Substantial questions of law raised is also relatable to the facts and circumstances, which were already adjudicated by the trial Court as well as by the First Appellate Court. This being the factum, the judgment and decree dated 15.09.2015 passed by the District Judge at Tiruvannamalai in C.M.A.No.2 of 2013, reversing the judgment and decree dated 04.04.2013 passed by the Principal Sub Judge at Tiruvannamalai in H.M.O.P.No.76 of 2009 stands confirmed and consequently, the Civil Miscellaneous Second Appeal in C.M.S.A.No.4 of 2016 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.