BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13.10.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

C.M.A.(MD)No.577 of 2017
and
C.M.P.(MD).No.6092 of 2017

A.Thilak Pandian … Appellant

Vs.

A.Jenita Jeba Malar … Respondent

Prayer: Appeal filed under Section 55 of the Divorce Act, 1869, to set aside
the judgment and decree in D.O.P.No.401 of 2014 dated 28.04.2017 on the file
of the Principal District Judge, Tuticorin, Tuticorin District.

!For Appellant : Mr.S.Muthalraj

^For Respondent : Mr.A.Thiruvadikumar

:JUDGMENT

The appellant herein got married to the respondent on 29.06.2012 as per
Christian rites. He now seeks divorce on the ground of cruelty under Section
10-1 (x) of the Divorce Act.

2.The respondent herein filed a detailed counter denying the
allegations made by the appellant. The appellant examined himself as PW1 and
marked Exs.A1 to A5. The respondent examined herself as RW1. The Court
below came to the conclusion that the wear and tear of marital life has been
grossly exaggerated by the husband and that he had not made out a case for
divorce. In that view of the matter, I.D.O.P. was dismissed. Questioning
the same, this appeal has been filed.

3.Heard the learned counsel for both parties.

4.The grounds of appeal are to the effect that the appellant had
suffered pain and suffering at the hands of the respondent and that the
conduct of the wife amounts to mental torture and cruelty. It was further
contended that there is no possibility of reunion between the parties.

5.A mere look at the memo of grounds of appeal is sufficient to dismiss
this appeal. The parties herein profess Christian religion. The marriage
was performed as per Christian rites and customs. Therefore, such a marriage
can be dissolved either by mutual consent or if any one or more of the
grounds set out in Section 10 of the Divorce Act, 1869 are established. It
is not open to this Court to dissolve the marriage on the ground that the
marital relationship has irretrievably broken down and that there is no
possibility of reunion.

6.The husband has filed a petition for divorce under Section10(1)(x) of
the Act. He is therefore obliged to establish by preponderance of probability
that the wife treated him with such cruelty as to cause a reasonable
apprehension in his mind that it would be harmful or injurious for him to
live with the respondent. Unless, this is made out, the appellant cannot get
divorce.

7.All that the appellant herein has alleged is that his wife did not
discharge her wifely obligations and that she left the marital home on
14.01.2013. When she was 6 months pregnant and that she did not return to
marital home even after giving birth to the child. It was the appellant who
brought her back on 27.06.2013. The respondent did not change her conduct
and approach. The parties were together for hardly nine months. She left the
marital home on 12.04.2014 along with the child and did not return. She gave
a police complaint before All Woman Police Station and took back her
jewelry. She threatened the appellant that if the appellant called her back
to her matrimonial home, she would commit suicide. The appellant issued
legal notice on 24.09.2014 seeking dissolution of marriage by mutual consent.
In response, she lodged a police complaint and took back the dresses and
other articles. Since there was no possibility of reunion, the appellant was
driven to filing the Divorce Petition. This was the stand taken by the
appellant in his petition.

8.On the other hand, the respondent alleged that the appellant was
highly insulting in his treatment and that when she left for her parents home
in connection with delivery of the child. The respondent did not even bother
to come and see her. She had also alleged that she was physically assaulted
by appellant’s sister.

9.The respondent herein has already filed M.C.No.27 of 2014 on the file
of the Judicial Magistrate No.1, Thoothukudi. The same is still pending.
There are two children born of the wedlock. They are in the custody of the
respondent. The respondent would plead that the husband should be
appropriately counselled and that she is ready for reunion.

10.The Trial Judge has noted that the appellant’s sister is a
physically challenged person and that she was also residing in the same
house. The strain between the parties commenced when the respondent wanted
to leave for her parents house in the seventh month of pregnancy. It appears
that the appellant herein did not give permission for the same. Secondly,
the appellant’s parents were not properly invited for the marriage of the
respondent’s brother. Thirdly, the appellant did not permit the respondent to
take back the jewelry which were in bank locker. The bank locker was in the
names of the appellant, respondent and father of the respondent. That is
why, the respondent went to the extent of giving a police complaint for
taking back her jewelry. Before the Trial Court excepting the oral testimony
of the appellant, there was no other corroborating material. The Trial Judge
also noted that the respondent had given birth to two children. But both the
deliveries were not natural. Therefore considering her health condition, she
had persuaded the appellant to set up a separate marital home. This was not
acceptable by the appellant. After taking into account the totality of the
facts and circumstances, the Trial Judge has given a finding that the husband
has not made out a case for grant of divorce. The incidents portrayed by the
husband happen in any normal family. More than anything else, when two
children have been born to the parties and the respondent has expressed her
readiness and willingness to be with the husband., there is no need to
dissolve the marriage tie.

12.Another contention raised by the husband is that the respondent was
found often talking to third parties over cell phone. This appears to have
caused major irritation to the husband. But this cannot amount to cruelty in
terms of 10 (1) (x) of the Divorce Act, 1869. At the cost of repetition, it
must be pointed out even before this Court, in the grounds of appeal no where
has it been even contended that the appellant is having reasonable
apprehension in his mind that it would be harmful or injurious for him to
live with the respondent and that therefore he must be granted divorce. It
is relevant to note here that the appellant has not prayed for divorce on the
ground of desertion. It is only on the ground of cruelty, he seeks relief.
Therefore, the onus is entirely on the appellant to prove to the satisfaction
of the Court that the conduct of the respondent wife is of the degree
envisaged by law. The Trial Court has given a finding that this burden of
proof has not at all been discharged. I am in entire agreement with the
reasons assigned by the learned Trial Judge for dismissing the Divorce
Original Petition.

13.I have to necessarily comment on the conduct of the
husband/appellant. Having given birth to two children through the
respondent, the husband without even making a whisper about his legal
obligations towards his children merely wants to walk away from his
responsibilities. The respondent even though has certain serious grievances
regarding the appellant’s conduct still wants reunion. That is obviously
because she has given birth to two children and they are entitled to the
love, affection and support of the father. There is absolutely no merit in
this appeal. It stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.

To

1.The Principal District Judge, Tuticorin, Tuticorin District.

2.The Record Keeper, Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.

.