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2022 DIGILAW 2525 (MAD)

A. Suresh v. Revathi @ Loganayagi

2022-08-04

J.NISHA BANU

body2022
JUDGMENT : (Prayer: Civil Miscellaneous Second Appeal has been filed under Section 100 of Civil Procedure Code against the judgement and order dated 3/12/2011 made in C.M.A.No.4 of 2011 on the file of the Principal District Court, Erode, reversing the fair and final order, dated 4/1/2011 made in H.M.O.P.No.166 of 2007 on the file of the Principal Sub-Court, Erode.) This Civil Miscellaneous Second Appeal has been filed against the judgment and order, dated 3/12/2011, made in C.M.A.No.4 of 2011, on the file of the Principal District Court, Erode, reversing the fair and final order, dated 4/1/2011, made in H.M.O.P.No.166 of 2007, on the file of the Principal Sub-Court, Erode. 2. The Substantial Question of law raised by the appellant/husband reads as under:- (a) Whether the Lower Appellate Court is right in reversing the well considered fair and final order made in H.M.O.P.No.166 of 2007 dated 04.01.2011, when the appellant proved his case under Sec.13(1)(i-a) of the Hindu Marriage Act, 1955, by producing oral evidence ? (b) Whether the Lower Appellate Court is right in disbelieving the evidence of P.W.2 and P.W.5 as they are residing for away from the resident of the appellant herein, when they are closely known to the family of the appellant ? (c) Whether the Lower Appellate Court is right in reversing the fair and final order made in HMOP No.166 of 2007, on the ground that the appellant failed to examine his mother as a witness on his side ? (d) Whether the Lower Appellant Court is right in disbelieving the evidence of P.W.2 and P.W.5 and drawing adverse inference for non-examination of the mother of the appellant as a witness, when the appellant was able to prove his case of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 ?. 3. Brief facts which are necessary for the disposal of this Civil Miscellaneous Second Appeal are as follows:- The Appellant, who is an agriculturalist, is the husband of the respondent. Marriage between the appellant and respondent was solemnized on 29/10/2001, at Erode. Out of the said wedlock, a female child by name Pavishna was born. In the meantime, respondent/wife insisted for separate residence. On account of cruelty caused, appellant started residing with his mother at Raghupathinaickenpalayam. Hence, he filed a petition seeking for divorce, in H.M.O.P.No.166 of 2007, before the learned Principal Subordinate Judge, Erode. 4. Out of the said wedlock, a female child by name Pavishna was born. In the meantime, respondent/wife insisted for separate residence. On account of cruelty caused, appellant started residing with his mother at Raghupathinaickenpalayam. Hence, he filed a petition seeking for divorce, in H.M.O.P.No.166 of 2007, before the learned Principal Subordinate Judge, Erode. 4. Considering the evidence of P.Ws.1, 2 and 5, the learned Principal Subordinate Judge, Erode, granted decree of divorce in favour of the appellant, vide, order dated 4/1/2011, in H.M.O.P.No.166 of 2007. Being aggrieved, the respondent/wife has filed C.M.A.No.4 of 2011. Vide order, dated 3/12/2011, the learned Principal District Judge, Erode, observing that the appellant has not proved the averments made in the petition, set aside the order passed by the learned Principal Subordinate Judge, Erode, in H.M.O.P.No.166 of 2007, and allowed the Civil Miscellaneous Appeal. 5. Being aggrieved, the appellant/husband has come forward with the instant Civil Miscellaneous Second Appeal praying for the relief as stated therein. 6. Heard Mr.P.Sengottuvel, learned counsel for the Appellant and Mr.N.Manokaran, learned counsel for the respondent. 7. The learned counsel appearing for the appellant/husband submitted that the respondent had treated the appellant/husband as an uneducated person with disrespect and never taken any steps for reunion. Moreover, the respondent had never permitted the appellant/husband to take care of his mother, who is a widow. 8. The learned counsel appearing for the respondent submitted that the respondent/wife was intensely concerned with her future and relationship with her husband and that her greatest paramount desire was to rejoin her husband and to live with him normally in a matrimonial relationship. 9. Perused the materials available on record. 10. Before the lower Court, the appellant/husband examined himself as P.W.1. Though the appellant/husband wanted to examine two more witnesses, viz., P.Ws.3 and 4, they have not turned up for cross examination by the respondent. Once the witness has not turned up their proof affidavit, their evidence would not be taken into consideration. Hence their evidence has been scrapped by the lower Court. If really, the respondent/wife had caused cruelty to the appellant, mother of the appellant would have been examined as one of the witnesses. No reason has been assigned as to why she had not been examined as one of the witnesses. 11. Hence their evidence has been scrapped by the lower Court. If really, the respondent/wife had caused cruelty to the appellant, mother of the appellant would have been examined as one of the witnesses. No reason has been assigned as to why she had not been examined as one of the witnesses. 11. Moreover, the evidence of P.W.2 is not a trust worthy one, because she is a close relative of the appellant/husband and it is not possible for P.W.2 to purchase milk from the appellant/husband which is seven kilometres away from the place of P.W.2. If really P.W.5 known the threat given by the appellant/husband and his mother upon the respondent/wife, his name would have been stated either in the petition or in the proof affidavit. Therefore, this Court comes to the conclusion that the evidence of P.Ws.2 and 5 would not be a believable one, and the same has been rightly observed by the learned Principal District Judge, Erode. 12. It is the bounden duty of the appellant/husband to establish the allegations raised, viz., cruelty, against the respondent/wife for grant of divorce. If he has not proved the same, he is not entitled to the relief as sought for in the petition. Allegations made on flimsy reasons cannot be constituted a ground for grant of divorce. In such a view of the matter, this Court has no hesitation in arriving a conclusion that the appellant/husband has not raised any acceptable substantial question of law warranting interference from this Court. The Judgment and decree dated 3/12/2011 passed in C.M.A.No.4 of 2011 stands confirmed. Consequently, the instant Civil Miscellaneous Second Appeal filed by the appellant/husband stands dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition No.5311 of 2022 is closed.