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2023 DIGILAW 561 (MAD)

Jerome Paulraj v. Alexis Amala Jency

2023-02-10

G.JAYACHANDRAN, K.K.RAMAKRISHNAN

body2023
JUDGMENT : 1. This Civil Miscellaneous Appeal is filed by the husband, who was an unsuccessful offender to get his marriage dissolved before the Family Court, Madurai. 2. The brief facts leading to this appeal is that, the appellant herein married the respondent on 15.02.2009 as per the marriage law governing Christian and a male child was born to them, on 21.01.2010. Both the parties are well employed as Teacher and there was no financial issue between them. However, the appellant was uncomfortable due to the alleged conduct of the respondent, who used to compare the other male members with the appellant and talk in demeaning manner. At one point of time, they got separated and the respondent along with minor boy went to her parents house. Narration of certain incidents by the appellant was insulting in nature, in view of the appellant. Hence, a petition for divorce filed on the ground of cruelty and desertion by the appellant. 3. To be noted, the petition for divorce was filed within 1 ½ years of the marriage. The said petition was contested by the respondent stating that she has never caused cruelty and in fact, she is always ready and willing to live with her husband, only due to the interference of the respondent’s family members, she is unable to live with her husband. For her safety and security of the minor boy, she was forced to leave the matrimonial home. 4. Before the Family Court, the appellant and two other witnesses were examined and 8 exhibits were marked. On the side of the respondent, she mounted the witness box subjecting herself for cross-examination. 5. The Family Court has disbelieved the case of the appellant, regarding cruelty and also has attributed that the separation was due to the conduct of the appellant and thus, dismissed the divorce petition. 6. The judgment and decree of the Family Court is impugned in this appeal on the ground that the Court below has not properly appreciated the evidence of PW-2 and PW-3. These two witnesses had spoken about the cruelty faced by the appellant, however their evidence totally ignored. Further, it is stated that the respondent had influenced the police when the divorce petition was pending. The appellant was asked to appear before the police on her complaint and in the Police Station, he was ill-treated. These two witnesses had spoken about the cruelty faced by the appellant, however their evidence totally ignored. Further, it is stated that the respondent had influenced the police when the divorce petition was pending. The appellant was asked to appear before the police on her complaint and in the Police Station, he was ill-treated. In this regard, the appellant gave a complaint to the Higher Officials viz., the Superintendent of Police, Sivagangai. These facts were not taken into consideration by the Court below. 7. The learned counsel appearing for the appellant/husband submit that the respondent has also initiated proceedings before the learned Judicial Magistrate cum Additional District Magistrate, Manamadurai, in Cr.No. 5357 of 2012 under the Domestic Violence Act, alleging threat to her life and for maintenance. The conduct of the respondent when pending divorce petition is manifestation of cruelty, which is evident through Ex.P.4 and Ex.P.5, which were not given due consideration by the Court below. 8. Finally, the learned counsel appearing for the petitioner citing the judgments of the Hon'ble Supreme Court and the High Court submitted that separation for a long period also tantamount to cruelty which is a ground to dissolve the marriage to avoid other social evil and in this case, the question of cruelty coupled with prolonged separation since 2010 may be considered for dissolving the marriage. 9. Per contra, the learned counsel appearing for the respondent/wife would submit that the respondent is a devouted Christian had never sought for dissolving the marriage and she is always ready and willing to join with her husband. It is the appellant, who adamantly refused the proposal of reunion, when it was suggested to him during the cross examination. For flimsy reason, the appellant has deserted his wife and his minor son. He has also categorically stated in his deposition that he is not interested to have the custody or visitation of his son. Therefore, the learned counsel would submit that the appellant, who is at fault of causing cruelty and desertion cannot take advantage of his own fault and claim that the long separation which prevail over will be sufficient to dissolve the marriage, which was duly solemnized under the Christian Law. 10. This Court has given its anxious consideration to the rival submissions. 11. The parties are well placed in the Society. Not even for a year, they were able to live together. 10. This Court has given its anxious consideration to the rival submissions. 11. The parties are well placed in the Society. Not even for a year, they were able to live together. Though they have begotten a child, but unable to sustain the marital relationship. Certain allegations are made in the petition attributing cruelty and to support the allegation, the appellant has examined himself and also two independent witnesses. However, for the trial Court, they were not sufficient to prove cruelty. Particularly, the allegation of the respondent attempt to commit suicide by immolation was disbelieved and found to be false. The evidence of PW-2, who claims to be a driver, carrying the respondent on that day of alleged incident was held, as not reliable. Similarly, the evidence of PW-3, who is the husband of the appellant's sister though had deposed in support of the appellant, the close relationship between the appellant and PW-3 has rendered his evidence unreliable. 12. This Court finds that even the evidence of P.Ws.2 and 3 is discarded, the allegation of cruelty mentioned in the petition is partly true. This can be seen from the conduct of the respondent, who has sought for protection and maintenance under DVC Act which is proved through Ex.P.4 and copy of her petition, marked as Ex.P.5. The allegation made by the respondent against the appellant in her petition filed under Section 12 of the Domestic Violence Act, that she gave complaint to the police in the year 2013, three years after the filing of the divorce petition, cause to show that the appellant and the respondent had developed mistrust against each other and they have not made any sincere attempt for reunion. Though it is suggested, in the cross examination of PW-1, that the respondent is ready to join him, the conduct of the respondent does not support the suggestion, particularly, when the entire family members of the appellant have been shown as accused in her complaint to the police. It is alleged that the appellant has been called to the Police Station and ill-treated. Hence, the appellant has reported the matter to the Higher Officials and the copy of the complaint to the Higher Officials, marked as Ex.P.4. It is alleged that the appellant has been called to the Police Station and ill-treated. Hence, the appellant has reported the matter to the Higher Officials and the copy of the complaint to the Higher Officials, marked as Ex.P.4. Though there is no evidence that such incident took place, the fact that after September 2010, the parties have not made any attempt for reunion for the past 13 years, the break down of marriage has never been reconciled by the parties leading to the inference that it has reached the stage beyond return. 13. The Hon'ble Supreme Court, in the case of Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , has illustrated the incident which leads to an inference that the marital relationship has reached the stage beyond repair and there is a break down of the marriage and the prolonged separation is a sort of mental cruelty, which is sufficient to dissolve the marriage. In this case the Court finds that the long period of continued separation has made the marital bond an empty shell. The failure to make any sincere efforts of reunion on either side, the marriage bond is kept uncertain and endlessly. 14. The learned counsel for the appellant submitted that pursuant to the order of the learned Judicial Magistrate passed in the petition filed under Domestic Violence Act, the appellant is paying a sum of Rs.5,000/- as maintenance every month without fail. The learned counsel would further submit that for the welfare of the son, he is ready to pay additional maintenance of Rs.5,000/-. Totally, a sum of Rs.10,000/- per month to his son, who is presently 13 years old. This Court records the said submission. 15. Besides, though the respondent has source of income to maintain herself, but for all these years, she has been taking care of the minor boy and this Court is of the opinion that the appellant is liable to share the financial expenses along with the respondent to bring up the minor boy. Hence, while reversing the order of the family Court, the appeal is allowed on the following terms: (i) The appellant is directed to pay a sum of Rs.10,000/- per month towards maintenance and expenses of the minor boy from the month of April 2023. Hence, while reversing the order of the family Court, the appeal is allowed on the following terms: (i) The appellant is directed to pay a sum of Rs.10,000/- per month towards maintenance and expenses of the minor boy from the month of April 2023. (ii) The appellant is directed to deposit a sum of Rs.10 lakhs in any one of the nationalized bank, in the name of the minor boy, making the mother as guardian. The money shall be kept in deposit, till the minor boy attains majority and the right is given to the mother to draw the interest to meet out the expenses for taking care of the boy, once in a year. With the above directions, this Civil Miscellaneous Appeal stands allowed. 16. In the result, the relief sought in IDOP No. 54 of 2010 is granted. The marriage solemnized between Jerome Paulraj and Alexis Amala Jency on 15.02.2009 is dissolved. No order as to costs.