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2022 DIGILAW 2566 (MAD)

V. Jothi Venkatesh v. Parameshwari

2022-08-08

P.T.ASHA

body2022
JUDGMENT (Prayer: Civil Miscellaneous Second Appeal is filed under Order 43 Rule 1 of the CPC r/w. Section 100 of CPC against the Judgement and Decree passed by the Principal District Judge, Namakkal, dated 23.09.2020 made in C.M.A.No.8 of 2018 confirming the Judgement and Decree passed by the Subordinate Judge, Rasipuram, made in H.M.O.P.No.38 of 2013 dated 22.08.2016.) 1. The unsuccessful petitioner before the Courts below in a petition seeking divorce on the grounds of desertion is the appellant before this Court. The appellant herein had filed H.M.O.P.No.38 of 2013 on the file of the Subordinate Court, Rasipuram seeking dissolution of the marriage conducted between himself and the respondent herein on 08.02.2009. 2. It is the case of the appellant that his marriage with the respondent was solemnised on 08.02.2009 and thereafter, the respondent had completed her B.E.course. She had also got a placement as a Professor in the Muthayammal College. Appellant's family had gifted jewellery to the respondent at the time of the betrothal as well as at the time of the wedding. However despite the appellant and his family members taking care of the respondent and her needs, the respondent made life hell for the appellant with her day-to-day torture using filthy language. The appellant would further submit that the respondent was in a relationship with her uncle one Sundar Raj, prior to the marriage. The appellant therefore doubted the paternity of the child born after the wedding. The appellant would submit that in the light of the above and since the respondent has been living away from the matrimonial home, the present petition has been filed. 3. The respondent had filed a counter inter alia contending that the allegations made in the petition were absolutely false and ridiculous. The respondent was never in a relationship with her uncle and that she would submit that the allegation that the child was not born to the appellant itself an act of cruelty. 4. The respondent would further submit that she had been subject to the great deal of torture at the hands of her mother-in-law and sister-in-law. The respondent would submit that she was always willing to continue with her marital life with appellant since they do not have any difference of opinion amongst themselves and it was only her mother-in-law and sister-in-law who was creating problem. 5. The respondent would submit that she was always willing to continue with her marital life with appellant since they do not have any difference of opinion amongst themselves and it was only her mother-in-law and sister-in-law who was creating problem. 5. The respondent would submit that on 30.01.2012, the respondent and the appellant had gone to attend the marriage function of the daughter of the respondent's paternal uncle and therefore even as late as in 2012, the appellant and the respondent have been living as husband and wife. The allegations regarding desertion is stoutly refuted by the respondent. 6. Before the learned Subordinate Judge, Rasipuram, the appellant was examined as P.W.1 and one Manikandan was examined as P.W.2 and Ex.P.1 to Ex.P.3 were marked on the side of the appellant. On the side of the respondent, R.W.1 to R.W.3 were examined and Ex.R.1 to Ex.R.4 were marked. 7. Ultimately, the learned Subordinate Judge, Rasipuram has dismissed the petition and the same has also been confirmed by the Lower Appellate Court. Challenging the same, the petitioner husband is before this Court. 8. Heard the learned counsel and perused the records. 9. The only ground on which the divorce is sought for is on the ground of desertion. The petition does not contain any information as to the date on which the respondent had deserted the appellant. In fact, the appellant has not given any date on which the respondent had left her matrimonial home except for contending that she has been away from April 2009. This statement is found to be untrue in the light of Ex.B.3. 10. The appellant who seeks to dissolve the marriage on the ground of desertion has alleged that his wife was in relationship with another man and that the daughter who was born was not his daughter. These are all the acts of cruelty. However, the wife has not chosen to file a petition for divorce. On the contrary, the respondent wants to live with the appellant, her husband. 11. The appellant has not been able to demonstrate and show proof that the respondent has deserted him. The Courts below have rightly dismissed the petition and I see no reason to hold otherwise. 12. The Civil Miscellaneous Second Appeal is dismissed. No costs.