RESERVED ON : 07.11.2017
DELIVERED ON : 13.11.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.11.2017
THE HON’BLE MR. JUSTICE M.DURAISWAMY
CIVIL MISC. SECOND APPEAL No.13 of 2015
Veerasamy … Appellant
Jayanthi @ Jayalakshmi … Respondent
Civil Miscellaneous Second Appeal filed under Order 28 of Hindu Marriage Act read with Section 104 of Code of Civil Procedure to set aside the order dated 03.10.2012 made in C.M.A.No.71 of 2011 on the file of Principal District Judge, Cuddalore, confirming the judgment and decree dated 29.09.2011 made in H.M.O.P.No.83 of 2011 on the file of Principal Subordinate Judge, Cuddalore.
For Appellant : Mr.V.Balamurugane
For Respondents : Mr.R.Gururaj
J U D G M E N T
The appellant, who is the husband of the respondent has filed the above Civil Miscellaneous Second Appeal challenging the judgment and decree passed in C.M.A.No.71 of 2011 on the file of Principal District Court, Cuddalore, confirming the order passed in H.M.O.P.No.83 of 2011 on the file of Principal Subordinate Court, Cuddalore.
2. The appellant-husband filed H.M.O.P.No.83 of 2011 for divorce on the ground of desertion and cruelty.
3. It is the case of the appellant that he got married to the respondent on 23.10.1988 and that they have a male child born on 10.09.1990. It is also the case of the appellant that the respondent-wife deserted him in the year 1990 and filed a suit in O.S.No.67 of 1996 on the file of I Additional Sub Court, Cuddalore for partition and other reliefs. Thereafter, the appellant filed H.M.O.P.No.87 of 2000 for divorce. The said Original Petition was dismissed for non prosecution. Thereafter, the respondent filed a petition in C.M.P.No.407 of 2009 on the file of Judicial Magistrate No.III, Cuddalore under section 12 of the Protection of Women from Domestic Violence Act, therefore, the appellant contended that he could not concentrate on his professional work. The appellant also contended that the respondent is living with another man, hence he raised the ground of adultery. In these circumstances, the appellant filed the petition for divorce.
4. The respondent-wife in her counter had stated that she is not living with another man and she is not living in adultery. According to the respondent, the appellant used to come drunk and he is also a chain smoker. She advised the appellant several times, but, he never cared. The respondent was leading a miserable life. The appellant drove her out of the house when she was pregnant and she made all attempt to join him by the Mediators, however, the said exercise had failed. The appellant had married a girl, by name, Selvi and he is living with her till now. Though there is no possibility of re-union, the respondent did not want to loose her status as the wife of the appellant. She is not willing for divorce. In these circumstances, the respondent prayed for dismissal of the divorce petition.
5. Before the Trial Court, on the side of the appellant, 3 witnesses were examined and 26 documents, Exs.P-1 to P-26 were marked and on the side of the respondent, she was examined as R.W.1 and 25 documents, Exs.R-1 to R-25 were marked.
6. The Trial Court, after taking into consideration the oral and documentary evidences let in by the parties, dismissed the petition.
7. Aggrieved over the same, the appellant preferred an Appeal in C.M.A.No.71 of 2011 on the file of Principal District Court, Cuddalore and the Lower Appellant Court also confirmed the order passed by the Trial Court and dismissed the appeal.
8. Aggrieved over the concurrent findings of the courts below, the husband has filed the above appeal.
9. The Civil Miscellaneous Second Appeal was admitted on the following substantial questions of law:-
(i) Whether the courts below are right in not considering that the appellant pleaded and proved that the respondent is guilty of desertion, by discharging his burden, as contemplated under sections 103 and 104 of the Indian Evidence Act?
2. Whether the appellant is not entitled to a decree of divorce on the grounds of cruelty and desertion by the respondent in the light of the broad parameters laid down by the Hon’ble Supreme Court in the decision reported in 2007 (3) CTC 464 2007(2) MLJU 1185 (SC)?
3. When he marriage had irretrievably broken down, is it not the obligation of the Court to dissolve the marriage?
10. Heard Mr.V.Balamurugane, learned counsel appearing for the appellant and Mr.R.Gururaj, learned counsel appearing for the respondent.
11. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the appellant has filed H.M.O.P.No.83 of 2011 for divorce on the ground of desertion and cruelty. It is the case of the appellant that the respondent left the matrimonial home on her own and that she treated him with cruelty. Further, the appellant has contended that the respondent is living with another man and that she is living in adultery. For the plea of adultery, the appellant has not substantiated the said contention by any evidence. Hence, the courts below have rightly rejected the said contention.
12. So far as the desertion is concerned, the respondent-wife contended that the appellant had married another lady, by name, Selvi. When this was put to P.W.1 (appellant) by showing a photograph of the said Selvi, the appellant has stated that he does not know the woman in the photograph is Selvi and that she is his second wife. Even in the other place, the appellant has evasively answered when questions were put to him with regard to the said Selvi. P.W.1 was evasive in his evidence with regard to Selvi. From the evidence of P.W.1, the courts below rightly came to the conclusion that the appellant had married the said Selvi as his second wife.
13. Further, in the evidence of P.W.1, it could be seen that he has not been paying the monthly maintenance to the respondent and his son. However, in his evidence, he had the audacity to say that he was earning Rs.60,000/- per month as his salary and he would have no objection for putting alms in the begging bowl of his wife. When the respondent and her son are entitled for maintenance as directed by the court, the appellant in an arrogant manner has stated like that in his evidence. The appellant should understand that he is not putting alms in the begging bowl of the respondent and it is his bounden duty to pay the maintenance amount without any default to her and her son. Having failed and neglected to pay the monthly maintenance as directed in E.P.Nos.13 and 14 of 2015, the appellant had the audacity to say so in his evidence. The statement made by P.W.1 cannot be appreciated by this Court.
14. As already stated, the appellant filed H.M.O.P.No.87 of 2000 on the file of Principal Sub Court, Cuddalore praying for a decree for divorce. But, subsequently, he left the Original Petition for being dismissed for non-prosecution on 10.03.2003. Now after a lapse of 6 years, the appellant again filed the present Original Petition in H.M.O.P.No.83 of 2011 on 15.09.2009. The appellant cannot file a petition for divorce in a peace meal manner and seek for the remedy. The conduct of the appellant would clearly establish that he is not interested in living with the respondent for the reason that he is already living with one Selvi. For the purpose of legalising the marriage with Selvi, the appellant is trying to get a decree for divorce. Since the appellant has not established his case in a proper manner, the courts below have concurrently dismissed the petition for divorce.
15. The learned counsel appearing for the appellant submitted that since the appellant and the respondent are living separately for several years , the marriage had irretrievably broken down and therefore, the divorce should be granted to the appellant. In support of his contention, the learned counsel relied upon a judgment reported in CDJ 2017 SC 1137 [Sukhendu Das v. Rita Mukherjee] wherein, the Apex Court held as follows:-
“8. This Court in a series of judgments has exercised its inherent powers Under Article142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted [Manish Goel v. Rohini Goel MANU/SC/0106/2010: (2010) 4 SCC 393 [para 11]]. Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony [Rishikesh Sharma v. Saroj Sharma MANU/SC/8607/2006: (2007) 2 SCC 263 [para 4 and 5]]. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the Appeal in exercise of our power Under Article 142 of the Constitution of India, 1950.””
16. In the above judgement, the Apex Court in the peculiar facts and circumstances of the case, in order to do complete justice between the parties, allowed the appeal in exercise of the power conferred under Article 142 of the Constitution of India, by granting a decree for divorce observing that the power under Article 142 of the Constitution of India is made available only to the Supreme Court of India and not to this court. Though there is no provision under the Hindu Marriage Act, 1955 for granting divorce on the ground that the marriage had broken down irretrievably, under Article 142 of the Constitution of India, the Hon’ble Supreme Court of India can grant a decree for divorce on the said ground. It is only the Apex Court, which in the exercise of its extraordinary powers under Article 142 of the Constitution of India, can pass such orders to do complete justice to the parties. The said power is not vested with any other court in the country. The direction issued by the Apex Court under Article 142, while moulding the relief depending on the particular facts and circumstances of a case. It has not comprised the ratio decidendi and therefore, cannot be perceived to be a binding precedent. Therefore, the judgment relied upon by the learned counsel for the appellant is not applicable to the present case.
17. In the absence of any acceptable evidence to substantiate the contention of the appellant, the courts below have concurrently dismissed the petition for divorce.
18. In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below. The Civil Miscellaneous Second Appeal is liable to be dismissed. Accordingly, the Civil Miscellaneous Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
1. Principal District Court,
2. Principal Subordinate Court,
CIVIL MISC. SECOND APPEAL No.13 of 2015