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Anthonichamy vs Rani @ Ezhilarasi on 15 November, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.11.2017

RESERVED ON : 26.10.2017

PRONOUNCED ON : 15.11.2017

CORAM

THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

C.M.A.(MD)No.650 of 2007

Anthonichamy … Appellant/Petitioner

vs.

Rani @ Ezhilarasi … Respondent/Respondent

PRAYER:- Civil Miscellaneous Appeal is filed under Section 55 of the Divorce
Act, 1869, against the fair and decreetal order, made in I.D.O.P.No.175 of
2000, dated 22.01.2007 on the file of the Principal District Court,
Thoothukudi.

!For Appellant : Mr.K.C.Gurusamy

^For Respondent : Mr.B.Rajesh Saravanan

:JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant, who is
the husband of the respondent, against the fair and decreetal order, made in
I.D.O.P.No.175 of 2000, dated 22.01.2007 on the file of the Principal
District Court, Thoothukudi.

2.The brief facts of the case of the appellant are as follows:-

The appellant got married with the respondent – Rani @ Ezhilarasi, on
21.11.1990, as per the Christians Custom in St.Joseph’s Roman Catholic Church
and was registered under the Christian Marriage Act. After the said marriage,
the appellant/husband and the respondent/wife lived together for seven years
and had no issues. The respondent conceived, after seven years and gave birth
to a male child. It is the further case of the appellant that the
respondent/wife was living happily only for two years with him and after
that, the respondent/wife started harassing the appellant for various issues
even for trivial matters and used to quarrel with him always and started
beating him and also insulted him. The respondent has also behaved in a very
strange manner in public, in the presence of close relatives by abusing him.
The respondent instigated her parents and family members to assault the
appellant with deadly weapons. After the child birth, the respondent/wife did
not come back to the matrimonial home and started living only with her
parents. When the appellant invited the respondent to live with him, the
respondent’s father and brothers supported the stand of the respondent and
foisted a false complaint against the appellant in the All Women Police
Station at Kovilpatti. The appellant took all efforts to live with the
respondent, but the respondent refused to live him and the respondent did not
allow the appellant to see his child.

(ii) The further case of the appellant that the respondent was close to
her sister’s husband and she would always comment that the appellant is not a
good match for her, which made the appellant to undergo mental agony and also
inflicted mental cruelty by the respondent. The appellant would also submit
that she had a clandestine relationship with her brother-in-laws and inspite
of that, he requested her to come and live with him. Since the respondent did
not bother to live with the appellant, even after much persuasions and
Mediations, he sent a legal notice to the respondent on 10.07.2000 that he
would file a petition for judicial separation and calling upon her to
handover the baby, but she did not reply to the notice. Hence, the appellant
had no other option except to file a divorce petition for dissolving the
marriage of the appellant and the respondent on 21.11.1990.

3.The respondent/wife filed counter-affidavit denying all the averments
as false and accusation that she is having a clandestine relationship with
her brother-in-law is only a false statement. It is not the respondent, who
used to avoid living with the appellant, but it is the appellant, who used to
avoid the respondent and used to find fault with the respondent on trivial
matters and picked up quarrel with her and the appellant had beaten the
respondent and threw her into the street in a dreadful night with her child
and that is the reason why, the respondent is residing with her parents and
further contended that the appellant only with an intention to escape from
the clutches of law, possibly if steps taken by the respondent for
maintenance and for other reliefs, the appellant has come out with this false
case and the same caused mental agony to the respondent and prayed for
dismissal of the petition.

4.The learned Principal District Judge, Tuticorin, after hearing the
appellant/petitioner and the respondent and analysing the evidence let in by
both the parties, had dismissed the said divorce petition that the appellant
has not proved his case, as per the allegations in his petition.

5.The learned counsel for the appellant would submit that adultery was
proved beyond reasonable doubt and would further submit that the learned
Principal District Judge, Tuticorin has not gone in detail regarding the
cruelty alleged by the appellant.

6.This Court has perused all the evidences and the materials available
on record and finds that the ground of the appellant that the respondent has
committed adultery and had deserted the appellant for two years and treated
the appellant with cruelty and it is harmful for the appellant to live with
the respondent is not proved. Regarding the adultery, the appellant’s
submission that the respondent/wife did not come to the matrimonial home,
after child birth and the appellant went to her house and requested her to
come back to his house went in futile and at that time, the parents of the
respondent had beaten him and they accused his parents in filthy language and
had given complaint against him to the police and the same was not proved,
since there was no evidence let in or any materials produced regarding such
police complaint.

7.On perusing the evidence, while in the cross-examination, the
appellant had deposed that he saw the respondent and one Tamilarasan together
was not proved and one of his relative viz., Mookiah, also saw his wife and
the said Tamilarasan, who were coming out of their house, around 11.00 a.m.,
was not substantiated by any evidence that he saw them inside their house in
any compromising state. The evidence would show that the respondent/wife
lived in a joint family with her mother, father, brothers and sisters and
there is no separate room and it is only a single room house and that too,
she had delivered a baby at that point of time. In the evidence, the
appellant has stated that he has not shared this affair to his parents or to
any one regarding the illicit relationship and further stated that the
respondent had given complaint only to his community people about the dispute
and they called the appellant and respondent and enquired them and advised
them. From his evidence, it is an admitted fact that even at that point of
time he had not informed about the illicit relationship, would also prove
that it is only an allegation and not proved. If he had really suspected
about his wife’s character, he would have informed this either to his parents
or to the parents of the respondent. The appellant relied upon the evidence
of one Mookiah-P.W.2, who had deposed that he and P.W.3 had went to the
parental house of the respondent, after the delivery and at about 04.00 p.m.
in the evening, at that time, the respondent and the brother-in-law of the
respondent had come out from their house and that P.W.2 did not step inside
the house and they do not know whether any other person were inside their
house or not and what these two were doing was not known to them, but they
had a doubt that they would have had some illicit relationship, cannot be
accepted. The mere allegation that they were together is not sufficient to
make allegation of cruelty and adultery which is going to spell the character
of the wife. It is only an assumption, on the basis of allegation made
against the wife by some one without any sufficient proof, the allegation has
to be rejected. The appellant making an allegation against his wife that she
had an affair with her sister’s husband ought to have included the other
person as a party to the proceedings. Failure to make such person as a
respondent, the petition deserves to be dismissed for non-joinder of
necessary party and the learned Principal District Judge, Tuticorin, has
rightly dismissed the petition filed by the appellant, which in the
considered opinion of this Court, is correct and the same does not require
any interference.

8.The appellant has not proved his case of adultery by the wife or the
mental cruelty by the wife by any clinching evidence. The normal wear and
tear of day-to-day life, simple misunderstanding has been blown up to this
level and this proves the perception of a husband, who always has suspicious
mind. The wives are not machines just to work and abide by the dictum of a
husband, but they are having their own self-respect and they also need a
caring life to lead a normal matrimonial life. The mere allegation that the
husband would have caused mental cruelty to the wife and not the vice versa,
the appeal has to be dismissed on the ground of failure of the husband to
prove the cruelty and act of adultery.

9.In view of the above, this Court is of the considered opinion that
there is no infirmity or irregularity in the order passed by the learned
Principal District Judge, Tuticorin. Therefore, this Civil Miscellaneous
Appeal deserves to be dismissed.

10.In the result, this Civil Miscellaneous Appeal is dismissed and the
fair and decreetal order, made in I.D.O.P.No.175 of 2000, dated 22.01.2007 on
the file of the Principal District Court, Thoothukudi, is hereby confirmed.
No costs.

To

1.The Principal District Judge,
Thoothukudi.

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

.

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