C.M.S.A.No.36 of 1998
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2019
CORAM
THE HON’BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.S.A.No.36 of 1998
and
C.M.P.No.16009 of 1998
M.Mythili … Appellant
Vs.
Meiyalagan … Respondent
Civil Miscellaneous Second Appeal is filed under Section 28 of the
Hindu Marriage Act read with Section 100 of the Civil Procedure Code, against
the Judgment and Decree dated 14.10.1997 made in A.S.No.50 of 1997 on
the file of the Principal District Judge, Nagai-Quide Milleth District at
Nagapattinam confirming the Judgment and Decree dated 02.01.1997 made
in H.M.O.P.No.40 of 1994 on the file of the I Additional Sub Judge,
Nagapattinam.
For Appellant : M/s.G.M.Mani Associates
For Respondent : Mrs.Usharaman
Judgment
This Civil Miscellaneous Second Appeal has been filed against the
Judgment and Decree dated 14.10.1997 made in A.S.No.50 of 1997 on the
http://www.judis.nic.in
1/10
C.M.S.A.No.36 of 1998
file of the Principal District Judge, Nagai-Quide Milleth District at
Nagapattinam confirming the Judgment and Decree dated 02.01.1997 made
in H.M.O.P.No.40 of 1994 on the file of the I Additional Sub Judge,
Nagapattinam.
2. The case of the appellant is that the respondent had filed a petition
for dissolution of marriage in H.M.O.P.No.40 of 1994 before the I Additional
Subordinate Court, Nagapattinam, stating that the marriage between the
appellant and the respondent was solemnized on 11.09.1983 at Karaikkal,
Nehru Nagar as per the Hindu Rites and Customs, and out of the wedlock,
two children were born to them. The appellant was not living with the
respondent from 04.01.1992 and she left the matrimonial home when the
respondent was away on duty. Thereafter, the appellant had lodged a false
complaint against the respondent at Velippalayam Police Station and obtained
a document from him by coercion. Subsequently, the appellant filed a suit for
maintenance in O.S.No.7 of 1992 which was decreed in favour of the her on
03.09.1993, and she also filed a suit in O.S.No.62 of 1992 on the file of the
Subordinate Judge, Nagapattinam for execution of the sale deed as if there
was an agreement for sale on the basis of the decree obtained at
Vellippalayam Police Station. Due to the said conduct of the appellant, he
seeks for dissolution of marriage solemnized between himself and the
appellant.
http://www.judis.nic.in
2/10
C.M.S.A.No.36 of 1998
3. Denying the allegations of the respondent, the appellant had filed a
counter affidavit stating that from the date of marriage, the respondent never
cared about the appellant and the children. The respondent purchased a plot
in his name by selling the jewels of the appellant, and therefore, the appellant
had requested him to transfer the property in her name. But, he refused to do
so. Hence, a dispute was arose between the appellant and the respondent.
There was a mediation, where the respondent had agreed to transfer the
property in the name of the appellant on or before 05.02.1992. The said
agreement was executed by the respondent before the mediators who
prevailed the appellant to withdraw the complaint made against the
respondent at Velippalayam Police Station for the attempt made on her life by
pouring Kerosene and setting fire on her. The appellant for safety of her life
went away to Karaikal and had been living there with her parents. Thereafter,
she filed a suit for maintenance in O.S.No.7 of 1992 before the Family Court,
Pondicherry and the same was allowed on 07.01.1994. The respondent had
not complied to the said order and he had not even preferred any appeal
against the same, and sought for dismissal of the divorce petition.
4. The I Additional Subordinate Judge, Nagapattinam, after considering
the pleadings, oral and documentary evidence, allowed the HMOP in favour of
the respondent on 02.01.1997. Aggrieved by the same, the appellant had
http://www.judis.nic.in
3/10
C.M.S.A.No.36 of 1998
preferred an appeal before the Principal District Court, Nagai-Quide Milleth
District, Nagapattinam, but it was dismissed on 14.10.1997. Hence, the
appellant has filed this appeal before this Court on the following substantial
questions of law :-
“(A) Whether the respondent/petitioner has proved
his case of desertion and cruelty by adducing any tangible,
reliable and independent evidences to save his self
interested deposition and marriage invitation?
(B) Whether the respondent/petitioner has proved
that the appellant has deserted him, without any justifiable
reason?
(C) Whether the Court below has considered the oral
and documentary evidences of the parties in their proper
prospective?
(D) Whether the respondent/petitioner could obtain
the decree for divorce, purely based on vague allegations
and that too, when he fails to prove the same by adducing
enough and satisfactory evidences?
(E) Whether the respondent/petitioner has proved
any ingredient contemplated under Section 13(1) (1a) of
the SectionHindu Marriages Act, to obtain a decree of divorce?”http://www.judis.nic.in
4/10
C.M.S.A.No.36 of 1998
5. Heard the learned counsel for the appellant and the learned counsel
for the respondent, and perused the materials available on record.
6. On perusal of the records, it is seen that the marriage between the
appellant and the respondent was solemnized on 11.09.1983, and out of the
wedlock, two children i.e. one male and one female were born to them. After
some periods, the respondent had sold the appellant’s jewels and purchased a
plot in his name, and therefore a dispute had arisen between the appellant
and the respondent. It is also seen that due to the said dispute, the appellant
left the matrimonial home and lodged a complaint against the respondent at
Velippalayam Police Station in order to obtain the documents and transfer the
property in her name. The respondent also agreed for transferring the
property in the appellant’s name and also given some documents to the
appellant at Velippalayam Police Station. Thereafter, the appellant had filed a
suit for maintenance in O.S.No.7 of 1992 before the Family Court at
Pondicherry and also filed a suit in O.S.No.62 of 1992 before the Subordinate
Judge at Nagapattinam for execution of the sale deed. The suit for
maintenance was decreed in favour of the appellant on 03.09.1993 and
subsequently, the respondent had filed a petition in HMOP.No.40 of 1994 for
dissolution of marriage solemnized on 11.09.1983 between himself and the
appellant.
http://www.judis.nic.in
5/10
C.M.S.A.No.36 of 1998
7. On perusal of the order of the Court below, it is observed that after
the marriage was solemnized on 11.09.1983 between the appellant and the
respondent, they both were living together for nearly 9 years, and thereafter,
only because that the respondent had sold the appellant’s jewels and
purchased a plot in his name, the appellant had created some problems and
stayed away from the respondent on 04.01.1992 without obtaining any
consent from him. Moreover, it is observed that after the appellant had left
him, she immediately lodged a complaint against the respondent at
Velippalayam Police Station stating that the respondent had tried to pour
kerosene on her and tried set fire on her, and due to the above said
complaint, the respondent was also arrested on 05.01.1992.
8. It is further observed from the order of the Court below that when
the respondent was arrested on 05.01.1992, he agreed by way of a written
undertaking for transferring the property in the appellant’s name, and even
after which, the appellant had not chosen to come and live with the
respondent, but had chosen file a suit for maintenance and a suit for
execution of the sale deed by the respondent. Moreover, it is observed that
after the maintenance suit was decreed in favour of the appellant on
03.09.1993, the appellant did not take any steps to live with the respondent
and she had continued to live with her parents along with her children
http://www.judis.nic.in
6/10
C.M.S.A.No.36 of 1998
deserting the respondent, and therefore, the respondent had chosen to file a
petition for divorce.
9. It is also found from the Judgment of the Court below that the
appellant has deposed that she was interested to live with the respondent and
for two times she had taken steps for reunion, but the respondent and her
father-in-law had not accepted for the reunion. Further, in the cross
examination, she has stated that she did not know when her father-in-law
died. If the appellant really had an intention to live with the respondent and if
she had taken genuine steps for reunion, she would have definitely known
about the death of her father-in-law. But she had not taken any steps and she
had continued to live with her parents all along even today. Hence, In view of
the above observations, it is clear that the appellant never interested to live
with the respondent and that there is no possibility of reunion between the
parties. The petition filed by the appellant before the said Police Station was
only to posses the property and had no inclination to join the respondent. So
in the absence of any evidence to prove her intention of joining the
respondent, this Court is not inclined to believe and accept the statement of
her.
10. It is settled principle that the cruelty is not only body cruelty, but
also the mere utterance of any word would also cause cruel then it is found to
http://www.judis.nic.in
7/10
C.M.S.A.No.36 of 1998
be cruelty. In this case, the appellant had forced the respondent to give an
undertaking before the concerned police and also filed maintenance petition
when the respondent was ready to live with her, which would have definitely
caused mental cruelty to the respondent. Therefore, the respondent with no
other option had filed the petition seeking to grant divorce.
11. As the parties are living apart for two decades, there cannot be any
possibility of reunion and hence, this Court is of the view that the marriage
has irretrievably broken. The appellant’s attitude was also proved by specific
incidents and the relief has to be granted in favour of the respondent. Hence,
this Court is not inclined to interfere with the Judgment of the Court’s below.
12. Accordingly, this Civil Miscellaneous Second Appeal is dismissed
and the substantial questions of law raised by the appellant are answered in
favour of the respondent. No costs. Consequently, the connected
miscellaneous petition is closed.
13.12.2019
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
http://www.judis.nic.in
8/10
C.M.S.A.No.36 of 1998
To
1. The Principal District Judge, Nagai-Quide Milleth District, Nagapattinam
2. The I Additional Sub Judge, Nagapattinam.
3. The Section Officer, VR Section, High Court, Madras.
http://www.judis.nic.in
9/10
C.M.S.A.No.36 of 1998
V.BHAVANI SUBBAROYAN.J.,
raja
C.M.S.A.No.36 of 1998
and
C.M.P.No.16009 of 1998
13.12.2019
http://www.judis.nic.in
10/10
