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2024 DIGILAW 2287 (MAD)

R. Yovan S/o Rajamani v. Vijaya D/o Selvanayagam

2024-09-25

SUNDER MOHAN

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JUDGMENT : SUNDER MOHAN, J. 1. The husband, aggrieved by the dismissal of his petition for divorce, has filed this appeal. 2. The facts leading to the filing of this appeal are as follows: (a) The appellant and the first respondent got married on 21.01.1991, as per the Indian Christian Marriage Act, 1872. (b) Out of the wedlock, a child was born on 10.12.1991. (c) Thereafter, the appellant went abroad and returned to his native place on 17.11.1994. (d) Another child was born on 30.05.1995. (e) The appellant, according to him, came to know about the illegal relationship of the first respondent with the second respondent herein. (f) Hence, the appellant filed a petition for divorce under Section 10 of the Indian DIVORCE ACT , 1869. (g) The first respondent filed a counter denying all the allegations and stating that she was always willing to live with the appellant and that, in fact, the act of the appellant amounted to the desertion, and hence, the appellant is not entitled to the decree of divorce under Section 10 of the Indian DIVORCE ACT , 1869. (h) The Trial Court, after considering the evidence on record, dismissed the petition for divorce, stating that no ground was made out for the grant of divorce. 3. The learned counsel for the appellant submitted that the Trial Court had not considered the evidence on record in proper perspective and that the evidence of P.W.1 to P.W.3 and the documents, especially Ex.A2, would show that the first respondent had admitted her relationship with the second respondent, and therefore, the Trial Court ought not to have dismissed the petition filed for divorce. 4. The learned counsel for the first respondent, per contra, submitted that the letter (Ex.A2) relied on by the appellant would clearly show that the first respondent had not admitted to any illegal relationship but had complained about the second respondent's illegal act of forcible sexual intercourse, and therefore, based on the said letter (Ex.A2), the adultery of the first respondent cannot be presumed. 5. Though notice has been served to the second respondent, none has entered appearance. 6. The only point for consideration in the instant appeal is whether the appellant is entitled to a decree of divorce on the ground of adultery. 7. 5. Though notice has been served to the second respondent, none has entered appearance. 6. The only point for consideration in the instant appeal is whether the appellant is entitled to a decree of divorce on the ground of adultery. 7. The evidence produced on the side of the appellant would show that the appellant and the first respondent were living together in India till December, 1991, and thereafter, the appellant had left India and returned to his native place on 17.11.1994. According to the appellant, it was during this period of separation that the first respondent developed a relationship with the second respondent. When the appellant questioned the first respondent about this relationship, differences of opinion arose between both of them. The father of the first respondent and other elders in the family attempted to pacify the appellant and brought the first respondent along with them. The first respondent also brought a letter seeking an apology from the appellant. In her deposition, the first respondent had denied writing such letter. 8. She had specifically denied writing another letter (Ex.A2). The first respondent, however, had admitted in the cross-examination that on a particular occasion, one Rajan had forcible sexual intercourse with her and that she had complained about the same to the appellant. The admission made by the first respondent in her cross-examination is corroborated by the contents in Ex.A2, even though the first respondent denied having written such a letter. On a reading of Ex.A2 and the other evidence on record, there is nothing to suggest that it was fabricated by the appellant. In fact, the Trial Court had not disbelieved Ex.A2 produced on the side of the appellant. In Ex.A2, the first respondent had admitted to the illegal act committed by Rajan but sought to justify it by saying that she was under threat from the said Rajan. However, the conduct of the first respondent in not complaining about the said incident immediately to the police or the elders in the family makes her version doubtful. P.W.1, the appellant, had also deposed that he had seen the first and second respondents in the house together. P.W.2 corroborates P.W.1's evidence regarding the quarrel between the appellant and the second respondent after the appellant allegedly saw the first and second respondents together in the house. Further, there are several inherent contradictions in the evidence of R.W.1. P.W.1, the appellant, had also deposed that he had seen the first and second respondents in the house together. P.W.2 corroborates P.W.1's evidence regarding the quarrel between the appellant and the second respondent after the appellant allegedly saw the first and second respondents together in the house. Further, there are several inherent contradictions in the evidence of R.W.1. In her pleadings, she has stated that the second respondent had misbehaved with her. However, in her deposition, she has denied such an incident. The relevant portion of her evidence reads as under: In light of the evidence of P.W.1 to P.W.3 and the inconsistent version of the respondent, this Court is of the view that the version of the appellant is probable. Further, the first respondent in turn alleged adultery against the appellant too but had not established the same. 9. Therefore, this Court is of the view that the appellant had established the ground for divorce. In any case, admittedly, the appellant and the first respondent have been separated from each other since 1995. The marriage is irretrievably broken down. Hence, this Court is of the view that the appellant would be entitled to a decree of divorce under Section 10 of the Indian DIVORCE ACT , 1869. The impugned judgment dated 26.09.2008 passed by the District Court, Kanyakumar District, in I.D.O.P.No.17 of 1996 is set aside. The appellant is entitled to a decree of dissolution of marriage. 10. In the result, this Civil Miscellaneous Appeal is allowed. No costs.