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M.Mythili vs Meiyalagan on 13 December, 2019

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

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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.

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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

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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?”

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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.

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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

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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

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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

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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.

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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

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