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2022 DIGILAW 3389 (MAD)

Anto Morais v. A. Ramila @ Shanthi

2022-09-19

R.THARANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 55 of the Indian Divorce Act, against the judgment and decree in D.O.P.No.311 of 2014, on the file of the Principal District Court, Tuticorin, dated 22.10.2018, in dismissing the Original Application filed by the appellant, claiming grant of divorce under Sections 18 and 19 in the Indian Divorce Act.) 1. This Civil Miscellaneous Appeal has been filed against the order, made in D.O.P.No.311 of 2014, on the file of the Principal District Court, Tuticorin, dated 22.10.2018, in dismissing the Original Application filed by the appellant, claiming grant of divorce under Sections 18 and 19 in the Indian Divorce Act. The appellant herein is the petitioner and respondent herein is the respondent in the main original petition. 2. Brief substance of the petition filed by the petitioner, in D.O.P.No.311 of 2014, is as follows: 2.1. The marriage of the petitioner and the respondent was solemnized on 09.07.2009. The entire expenses was borne by the petitioner. They have a son by name, Aron and a daughter by name, Snow. The respondent used to fight with the petitioner from the date of marriage. The petitioner was working in the Port and he used to come home in a tired stage. Without considering the stage of the petitioner, the respondent used to fight with him. She used to damage the Television remote, and the vessels. The petitioner was tolerating everything. The respondent used to go to her mother's house at Nagercoil, without informing the petitioner. Though the petitioner was working as a Cooli in the Port, he was maintaining the family in the proper manner. But, she never take care of the children, she used to spent huge amount for beauty parlour and for extravagant expenses. The respondent used to lodge false complaint against the petitioner. During the may – 2014, when the petitioner was visiting his father, who was admitted in Thoothukudi American Hospital, the respondent without informing the petitioner and without any reason, went to her parents house, even without locking the house and from that date onwards, the respondent and the petitioner were living separately. Though the petitioner called upon the respondent to come home, she is neglecting the same and she is not allowing the petitioner to see the children. 2.2. Since the Education of the elder child is affected, the petitioner sent a Lawyer notice on 12.07.2014. Though the petitioner called upon the respondent to come home, she is neglecting the same and she is not allowing the petitioner to see the children. 2.2. Since the Education of the elder child is affected, the petitioner sent a Lawyer notice on 12.07.2014. The respondent received the notice on 17.07.2014, but, she failed to send any reply. Subsequently, the respondent lodged a false complaint against the petitioner before the All Women Police Station, Thoothukudi. On enquiry, the petitioner came to know that the respondent was married to one Sugandar raj, S/o. Walter Fernandas and the marriage took place at the Anthoniyar Church, Kulasekarapattinam, on 03.07.2003. The marriage was not dissolved. The respondent suppressed the first marriage and married the petitioner on 09.07.2009. The factum of the earlier marriage was known to the petitioner only on 01.08.2014 and hence, the marriage between the petitioner and the respondent is to be declared as null and void. 3. Brief substance of the counter filed by the respondent, in D.O.P.No.311 of 2014, is as follows: 3.1. Both the petitioner and the respondent were already married. Both of them were aware of the earlier marriage. On the side of the petitioner, it was stated that the petitioner was working in the Ship and he was earning a lump sum amount. On the instigation of the parents of the petitioner, the respondent's parents gave 25 sovereigns gold jewels and Rs.30,000/- cash as dowry and Rs.50,000/- worth house hold articles. The respondent lived in the joint family of the petitioner. They demanded the respondent to do all the work, they would not allow her to take food in time. The petitioner is a drunkard. He used to harass the respondent physically. 3.2. Even after several months from the date of marriage, the petitioner was not going for any work and he spent time in the house. When the same was questioned by the respondent, he told that for going to the work, he need money and that only after disbursing the loan that was obtained for marriage, he can to go to work. The petitioner insisted the respondent to get the amount from her parents. The petitioner and his family members snatched away 17 sovereigns of gold from the respondent. Instead of repaying the loan, they spent the amount lavishly. 3.3. The petitioner used to call the respondent as Number Two. The petitioner insisted the respondent to get the amount from her parents. The petitioner and his family members snatched away 17 sovereigns of gold from the respondent. Instead of repaying the loan, they spent the amount lavishly. 3.3. The petitioner used to call the respondent as Number Two. He used to torture the respondent physically and mentally. The respondent borrowed a sum of Rs.50,000/-, give the same to the petitioner and sent the petitioner to work in the Ship, during August - 2010. After the petitioner went to work in the Ship, his family members sent the respondent to her parents and the petitioner did not send any amount to the respondent. Only during January – 2011, the petitioner sent Rs.3,000/- to the respondent. 3.4. On hearing that the petitioner came from the work during February – 2011, the respondent try to enter the house, but, it was prevented by the petitioner and his family members. After some compromise talk, the respondent was again allowed to live with the petitioner. Again the petitioner was not going for any work. He demanded money to renew the passport and to go for work in the Ship. 3.5. The respondent borrowed a sum of Rs.40,000/- and gave the same to the petitioner. Instead of spending the amount to get a job, the petitioner stayed at Mumbai and spent the amount for liquor and return back to Thoothukudi, after spending the entire amount. The petitioner demanded the respondent to get amount from her parents for his drinks. 3.6. Due to the harassment of the petitioner, the respondent lodged a complaint on 30.04.2014 before the All Women Police Station, Thoothukudi. The petitioner and his mother promised to return back the jewels and the cash amount, but, later, they failed to return the jewels and the cash amount. The petitioner sent a legal notice containing false averments. It was the petitioner, who never take any steps to see the children. Only to escape from the complaint lodged by the respondent, the petitioner has filed this petition. 4. On the side of the petitioner, 2 witnesses were examined and 3 documents were marked. On the side of the respondent, 1 witness was examined and no document was marked. One document was marked as Ex.C1. After hearing both sides, the trial Court dismissed the petition. 5. 4. On the side of the petitioner, 2 witnesses were examined and 3 documents were marked. On the side of the respondent, 1 witness was examined and no document was marked. One document was marked as Ex.C1. After hearing both sides, the trial Court dismissed the petition. 5. Against the order of dismissal, the petitioner / husband has filed this appeal on the following grounds:- The Trial Court failed to note that the first marriage of the respondent - wife was not cancelled or annulled, on 09.07.2009. The trial Court ought to have granted divorce under Sections 18 and 19 of the Divorce Act. The Trial Court failed to consider both the oral and documentary evidence relating to the first marriage of the respondent, which was subsisting in the year 2003. The respondent had deliberately suppressed her first marriage with Sagantira Raj, on 03.07.2003. The respondent is irresponsible, short tampered and spent thirft and was not able to lead a normal martial life. She deliberately deserted the appellan – husband. The appellant is being subjected to undue cruelty and degradation, which was evidenced by the filing of criminal complaint. 6. On the side of the appellant / husband, it is stated that the respondent used to ill-treat the husband and abused him. The appellant was working in Thoothukudi Port. The respondent never care about the children. She used to brake the house hold articles. Without informing the husband, she used to go to her parents house. After the husband admitted his father in the hospital, on returning back from the hospital, he found the house open and that the wife went to her mother's house, with the children. 7. On the side of the respondent / wife, it is stated that though they are having two children, till now, the appellant never give even a single paise for maintaining the children. It was the appellant-husband, who used to harass the wife. He used to beat her daily in a drunken mood. 8. The allegation put forth by the husband against the wife is that she used to scold him and used to brake the house hold articles and that she used to go to her mother's house, without informing the petitioner. Except the evidence of the petitioner, there is no other evidence to prove that the wife harassed the appellant and commited cruelty. Except the evidence of the petitioner, there is no other evidence to prove that the wife harassed the appellant and commited cruelty. The appellant has failed to prove that the wife is guilty of cruelty. 9. Another allegation put forth by the appellant-husband is that the respondent suppressed her first marriage and married the petitioner / appellant. It is stated that the respondent married one Sugantar raj, S/o.Walter Fernandas, on 03.07.2003. To substantiate this, the husband examined P.W.2 – James Peter, Father of the Anthoniyar Church, Padhumai Nagar, Kulasekarampattinam. P.W.2 has deposed that on 03.07.2003, Suganthira raj, was married to Maria Vasantha Therasa Emila D/o. Jesu Ponnusamy and the marriage was registered in the Church. The extract of the marriage register was marked as Ex.C1. 10. On the side of the appellant - husband, it is stated that the earlier marriage was not dissolved. Hence, the marriage between the appellant and the respondent is not valid. On the side of the respondent - wife, it is stated that both for the appellant and for the respondent, this marriage is a second marriage. Both of them already got divorce. Even in the marriage certificate, both of them were mentioned as divorcees. It is false to state that the husband was aware of the previous marriage of the wife, only on 01.08.2014. 11. In Ex.P1, it is clearly mentioned that both the bride and bridegroom were already divorcees. Hence, the contention of the appellant that he was not aware of the earlier marriage till 01.08.2014 is not sustainable. 12. In the evidence of P.W.1, it is admitted that in that divorce petition, the appellant's first wife, by name, Elisa, has stated that the appellant harassed her and he never used to go for any job. The evidence of the husband reveals that the averments in the statement of the wife is reliable. 13. There is no evidence to prove that the appellant was not aware of the earlier marriage of the respondent. When the document Ex.P1 is clear that both bride and bridegroom were divorcees, it is the decided that the appellant has failed to prove the same. No document was filed on the side of the appellant to prove that the earlier marriage was not dissolved sofar. The appellant as the petitioner has to prove the case. When the document Ex.P1 is clear that both bride and bridegroom were divorcees, it is the decided that the appellant has failed to prove the same. No document was filed on the side of the appellant to prove that the earlier marriage was not dissolved sofar. The appellant as the petitioner has to prove the case. The appellant has failed to prove that the earlier marriage was subsisting, at the time of the second marriage. 14. As the cruelty and the suppression of the earlier marriage were not proved, it is decided that there is nothing sufficient enough to interfere in the orders of the trial Court. Hence, this Appeal is dismissed. No costs.