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[email protected] vs M.Karthick on 14 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14.09.2018

RESERVED ON : 26.03.2018
PRONOUNCED ON : 14.09.2018

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.M.S.A(MD)Nos.1 of 2016
and 2 of 2016
and
C.M.P.(MD).Nos.852 and 853 of 2016

C.M.S.A.(MD).No.1 of 2016:-

[email protected]

Appellant/Respondent/Respondent

Vs.

M.Karthick

… Respondent/Appellant/Petitioner

PRAYER:- Civil Miscellaneous Appeals filed under Section 28 of H.M.O.P. read
with 100 of C.P.C against the judgment and decree passed in H.M.C.M.A.No.5
of 2014 on the file of the Additional District Court, Virudhunagar dated
11.12.2015 which was reversed in H.M.O.P.No.111 of 2013 of the file of the
Sub-Court, Virudhunagar, dated 12.09.2014.

C.M.S.A.(MD).No.2 of 2016:-

Sharmila … Appellant/Respondent/Petitioner

Vs.

M.Karthick … Respondent/Appellant/Respondent

PRAYER:- Civil Miscellaneous Appeals filed under Section 28 of H.M.O.P. read
with 100 of C.P.C against the judgment and decree passed in H.M.C.M.A.No.6
of 2014 on the file of the Additional District Court, Virudhunagar dated
11.12.2015 which was reversed in H.M.O.P.No.103 of 2013 of the file of the
Sub-Court, Virudhunagar, dated 12.09.2014.

!For Appellant :Mr.C.Vakeeswaran
^For Respondent :Mr.R.Suriyanarayanan

:COMMON JUDGMENT

Both the Civil Miscellaneous Second Appeals have been filed
against the decree and judgments dated 11.12.2015 in H.M.C.M.A.Nos.5 6 of
2014 Additional District Court, Virudhunagar reversing the decree and
judgments dated 12.09.2014 in H.M.O.P.Nos.111 and 103 of 2013 of the file of
the Sub-Court, Virudhunagar.

2. Since the issues are inter-woven to each other, both the
appeals are taken up together and decided by this common judgment.

3. This appellant herein is the wife of the respondent herein.
For the sake of convenience, the parties are referred to as per the rank
mentioned in the civil miscellaneous second appeals.

4. Sans unnecessary details, the facts are depicted below:-
4.1. The marriage between the appellant and the respondent was
solemnised on 24.11.2010. Due to matrimonial dispute, the appellant herein
left the matrimonial home on 27.01.2011 wherefrom the litigation sprouted
out. To put it in a nutshell, originally, the respondent herein filed a
Petition in H.M.O.P.No.597 of 2011 for divorce against his wife on the file
of the Family Court, Madurai. During its pendency, the appellant herein filed
a petition against this respondent in H.M.O.P.No.01/2013 for restitution of
conjugal rights on the file of Sub-Court, Sankarankovil. Pursuant to the
order passed by this Court vide TR.CMP(MD).No.75 of 2013 dated 30.10.2013,
both the cases were transferred to the Sub-Court, Virudhunagar, wherein the
case of the husband had been taken as H.M.O.P.No.111 of 2013 and the case of
the wife, had been taken as H.M.O.P.No.103 of 2013 on the file of the Sub-
Court, Virudhunagar. Considering the fact that the issue involved in both
cases are between the husband and wife, both cases had been tried jointly by
the lower Court and the evidence had been recorded in H.M.O.P.No.111 of 2013.

5. The trial Court after careful consideration allowed the
restitution of conjugal rights filed by the wife vide its order dated
12.09.2014 in H.M.O.P.No.06/2014 and dismissed the divorce petition filed by
the husband in H.M.C.M.A.No.5 of 2014.

6. Assailing over the findings of the trial Court, the husband
preferred appeals in H.M.C.M.A.Nos.5 and 6 of 2014 on the file of Additional
District court, Virudhunagar, dated 11.12.2015.

7. The lower appellate Court, after appreciating the evidence
on record and relying upon the judgments of this Court as well as the Supreme
Court tried both the petitions together and declared, that the marriage
between the appellant and the respondent is null and void and further
dismissed the petition filed by the appellant for restitution of conjugal
rights.

8. Fulminating at the decision and findings of the lower
Court, the wife has preferred the Civil Miscellaneous Second Appeals as
against the decree and judgments dated 11.12.2015 in H.M.C.M.A.Nos.5 6 of
2014 Additional District Court, Virudhunagar for the relief stated supra.

9. Learned counsel appearing for the appellant would submit that
the marriage in dispute was registered under the provisions of the Tamil Nadu
Registration of Marriage Act, 2009. The lower appellate Court failed to
consider that the marriage was solemnized on 24.11.2010 and the appellant
left the matrimonial home on 27.01.2011. So, the appellant and the
respondent lived together only for two months. In between these months, the
respondent worked in Chennai and therefore, there is no co-habitation between
the appellant and the respondent and they hardly lived together only for a
few days. In otherwords, there is no question of cruelty made by this
appellant in between these few days as alleged by the respondent. The lower
appellate Court without appreciating such vital point derailed the just and
fair judgment made in H.M.O.P.No.103 and 111 of 2013 on the file of the Sub-
Court, Virudhunagar dated 12.09.2014. Further, the lower appellate Court
failed to consider that the husband examined himself and his father as a
witness and there were no independent witnesses examined on his side in order
to prove the cruelty made by the appellant/wife as alleged in his affidavits.
It is also not dispute that the respondent/husband made intolerance of phone
call to his own sister during night hours to upset the minds of the
appellant/wife and the said factum was not disputed by the respondent/husband
during the cross-examination. Being a newly married woman, it is common
knowledge that the bridegroom would have got lot of dreams and expectations
in her mind. Such natural expectations could not be fulfilled by the
husband/respondent. In the case on hand, the husband/respondent did mental
cruelty to his wife rather than alleging his wife/respondent. Added further,
before the Court below, the appellant/wife examined herself and one
independent witness, namely, S.Ramakrishnan on her side as R.W.2, who clearly
deposed that the appellant/wife was willing to live with the
respondent/husband, who in turn, refused to unite and all efforts to re-unite
with the respondent/husband made futile. Mere wear and tear, skirmishes and
regular fight between the spouses in day today family life shall not take the
character of cruelty which does not contemplate under the Act and there must
be specific and concrete instances of cruelty. Therefore, he prays for
setting aside the order of the lower appellate Court and allowing these Civil
Revision Petitions.

9.1. In support of his contentions, the learned counsel
appearing on behalf of the appellant/wife has relied on the following
judgments:-

a.Gurbux Singh Vs Harminder Kaur reported in 2010(7)Supreme (SC) 980.
b.Ramachander Vs Ananta reported in 2015
2 JCR (SC) 235

10. Repelling the contentions of the learned counsel appearing
for the appellant/wife, the learned counsel appearing for the
respondent/husband would submit that the second appeal in the matrimonial
cases under Section 28 of the Hindu Marriage Act is maintainable only when
there is a substantial question of law available under Section 100 CPC. In
the case on hand, absolutely, there is no substantial question of law raised
in the afore-said second appeals. The last fact finding Court, namely, the
first appellate Court, after evaluation of the evidences very categorically
found that there is non-cooperation for coitus on the part of the appellant
and intolerance of phone talks with mother and sister and found that it
created the mental cruelty to the respondent. The quarrel between the
appellant and the respondent started during honeymoon and it ended on
27.01.2011, when she left the respondent without any valid reasons. The act
of the appellant respondent is clear case of non-cooperation of coitus and it
forms mental cruelty, as it is the main part of the marriage. Leaving the
matrimonial home without any reason would cause stigma on the husband, when
facing his friends and relatives, as there would be every chance of having
bad impression on him that he might be impotent or man of worst character in
treating the appellant. No doubt the appellant and the respondent lived as
husband and wife for two months intermittently from the date of marriage on
24.11.2010 but have been separated for about seven years thereafter without
coitus and hence, their marriage is irretrievably broken down. Drawing the
attention of Section 13(1A) sub clause (ii) of the Hindu Marriage Act, he
would submit that it is a fit case for granting divorce instead of
restitution, as the date of restitution decree on 12.09.2014 but thereafter
sofar no restitution of conjugal rights taken place between the parties.

11. In support of his contention, he relied on the following
judgments:-

(a)2005-2-L.w.149, A.Jayachandra Vs. Aneel Kaur

(b)2005(3)CTC 504, Govindaraju Vs Mariamman

(c)2006(4) L.W.959, Sugani Vs Rameshwar Das another

(d)2006(13)SCC 272, Sujata Uday Patil Vs Uday Madhukar Patil

(g)2007(4)SCC 511

(h)2007(3) CTC 464, Samar Ghosh Vs. Jaya Ghosh

(i)2010-3-L.W.10, Ravi kumar Vs Julmidevi

8. Heard the learned counsel appearing for the appellant/wife and
the learned counsel appearing for the respondent/husband and perused the
materials available on record.

9. Notice to the respondent was ordered on 15.02.2016 and interim
stay was granted on 29.01.2016. Thereafter, the matters were listed on
various occasions and the matters were mediated both by My Predecessor and
before Me on 18.02.2016 and 24.01.2018 respectively in the Chambers for
arriving at an amicable settlement between the parties. Despite best efforts,
Our attempts to unite the couple through mediation failed. Now, the Court has
no option but to deal with the matters as per the merits and provisions of
the Act contained therein.

6. Though very many contentions and ground have been raised,
to the case hand, it would be appropriate to say that as on today, the
appellant has been living separately from the husband for the past seven
years and the admitted fact is that the husband is not willing to live with
her. Though strenuous efforts have been done to unite the couple, it went in
vain. Therefore, where there has been a long period of continuous separation,
it may fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing to
sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties. In such cases, it may lead to mental cruelty.
Therefore, the appellant falls within the category of Section 13(1)(i)(a) of
the Hindu Marriage Act.

7. Needless to mention that the law is only for the welfare of
the people. Though this Court understand the anxiety of the appellant to
unite with the respondent, when he refuses to do so, this Court has no other
option. In the matrimonial cases, when hearts unite, the law has no role to
play. But, when it refuses to unite, then the Court has no option but to
proceed as per the law. In matrimonial matters, this court keeps in mind that
it has to be very cautiously and sparingly to be applied before going to the
extreme step of separating the couple. But, in the case on hand, the husband
refuse to live with the appellant and it cannot compel to live with her. The
applicability of law is more important in matrimonial related issues. The
long separation between the husband and wife should have taught a lesson,
despite the allegations levelled against each other, but it is not so. They
should have longed for each other though the cases are pending against them.
However, this Court could not see any such improvement despite Our personal
efforts to unite them in the Chamber.

8. When I take into consideration the aforementioned factors
along with an important circumstance that the parties have been admittedly
living separately for more than seven years and in such cases, the
irresistible conclusion would be that matrimonial bond has been ruptured
beyond repair. The conduct of the parties also shows that the widening of
the rift between them. Therefore, this is a clear case of irretrievable
breakdown of marriage. In my considered view, it is impossible to preserve or
save the marriage by force or coercion. Any further effort to keep it alive
would prove to be totally counterproductive.

9. In my considered opinion, the lower appellate Court in the
impugned judgment after considering the most important and vital circumstance
of the case in proper perspective granted the relief sought for by the
husband/respondent. In my view, in a case of this nature, no other logical
view is possible. In other words, on proper consideration of cumulative
facts and circumstances of this case, the appellate court, applied the
concept of mental cruelty as pointed out in paragraph No.18 of its judgment
and accordingly, granted divorce to this appellant and the same is confirmed
by this Court. In the backdrop of the spirit of the case, the lower appellate
court, was fully justified in favouring with the respondent. Consequently,
the impugned judgment of the appellate Court made in H.M.C.M.A.Nos. 5 6 of
2014 on the file of the Additional District Court, Virudhunagar dated
11.12.2015 stands confirmed. These appeals are accordingly dismissed.
However, in the facts and circumstances of the case, there shall be no order
as to costs. Consequently, connected miscellaneous petitions are closed.

bala
To,

(i)The Additional District Court, Virudhunagar

(ii)The Sub-Court, Virudhunagar.

Copy to:-

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

.

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