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P.Kumar vs S.Malarselvi on 31 January, 2020

C.M.S.A.No.20 of 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 31.01.2020

CORAM

THE HON’BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

C.M.S.A.No.20 of 2014

P.Kumar … Appellant

Vs.

S.Malarselvi … Respondent

Civil Miscellaneous 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 18.12.2013 made in HMOP.C.M.A.No.48 of 2011
on the file of the Second Additional District Court, Erode, reversal of the fair
and final order dated 05.01.2011 made in HMOP.No.174 of 2008 on the file of
the Principal Sub Court, Erode.

For Appellant : Mr.K.S.Jeyaganeshan

For Respondent : Mr.K.Purushothaman

Judgment

This Civil Miscellaneous Appeal has been filed against the Judgment

and Decree dated 18.12.2013 made in HMOP.C.M.A.No.48 of 2011 on the file

of the Second Additional District Court, Erode, in reversing the fair and final

order dated 05.01.2011 passed in HMOP.No.174 of 2008 on the file of the

Principal Sub Court, Erode.

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C.M.S.A.No.20 of 2014

2. The case of the appellant is that the appellant and the respondent

are different community and they married on 06.11.2006. Before the

marriage, they were employed in Rago computers, and during their

employment, they fell in love with each other. Even before the marriage, they

had intimacy with each other. As a result of which, the respondent became

pregnant before marriage. The parents of the respondent took immediate

steps for registration of the marriage and accordingly the marriage was also

held on 06.11.2006 in the Sub-Registrar Office at Sivagiri. The appellant and

the respondent lived together in a rental house at Surampatty, Erode and a

female child was born in the month of January 2007. After the birth of the

child, the respondent did not have any interest in the companionship of the

appellant, and on many occasions, she without any reason misbehaved with

him. The appellant also advised her not to repeat so, but she did not change

her activities and also she started to suspect the appellant and caused mental

agony to him. In the first week of April 2007, the respondent left to her

parents house at Veerappampalayam, Arachalur Village, informing the

appellant that she would return after some days, but later she did not

returned to home.

3. The appellant had met the respondent at her father’s residence after

two months and requested her to join with him, but the respondent refused

to come and abused the appellant in filthy words in presence of his friend.

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C.M.S.A.No.20 of 2014

Due to the misconduct of the respondent, the appellant became depressed

and not able to lead a happy marital life and the appellant’s mother was also

committed suicide on 17.06.2007 after knowing about the dissatisfaction of

his marital life, but the respondent not even enquired about the same. A

Panchayat was convened with regard to their marital life, and even before the

Panchayatar, the respondent illtreated the appellant and caused mental

cruelty to him. Hence, the appellant had filed a petition for divorce in

HMOP.No.72 of 2008 before the Principal Subordinate Court, Erode. When the

case was posted for appearance of parties, the respondent was not willing to

dissolve the marriage. Hence, the petition was dismissed on 26.06.2008.

Thereafter, on 05.07.2008, two rowdies came to the appellant’s office and

threatened him not to proceed the divorce petition. However, the appellant

again filed a divorce petition in HMOP.No.174 of 2008 before the Principal Sub

Court, Erode.

4. Denying the allegations, the respondent had filed a counter affidavit

stating that she did not misbehaved with the appellant and only the appellant

had misbehaved with her. The appellant does not have any interest to live

with the respondent and therefore he filed a divorce petition against her. The

respondent is always ready to live with the appellant and sought for dismissal

of the petition filed by the appellant.

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C.M.S.A.No.20 of 2014

5. The Principal Sub Court, Erode, after hearing both side arguments

had passed an order on 05.01.2011 by granting the decree of divorce in

favour of the appellant by canceling the marriage solemnized on 06.11.2006

between the appellant and the respondent. Aggrieved by the same, the

respondent/wife has preferred HMOP.C.M.A.No.48 of 2011 before the Second

Additional District Court, Erode, and the same was allowed on 18.12.2013.

Hence, the appellant has filed this appeal before this Court on the following

substantial questions of law :

a) Whether the First Appellant Court has committed an
error in dismissing the petition for divorce filed on the ground
of cruelty by treating them as an ideal husband and ideal wife
instead of considering the social status of the parties, their
ways of life, relationship, temperament and emotions that
they have been conditioned by their social status?

b) Whether the First Appellate Court is right in
dismissing the divorce petition particularly when the parties
have been living separately for the past 7 years and their
marriage has been broken down irretrievably?

c) Whether act complaint of by the appellant would
amount to mental cruelty when the feeling deep anguishes,
disappointment and frustration has rendered the marriage life
as a misery to him?

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C.M.S.A.No.20 of 2014

d) Whether the Judgment of the First Appellate Court is
in compliance with the mandatory provisions of Order 41 Rule
31 CPC?

6. Heard the learned counsel for the appellant and the learned counsel

for the respondent, and perused the materials available on record.

7. On perusal of the Judgment and Decree dated 18.12.2013 made in

HMOP.C.M.A.No.48 of 2011 on the file of the Second Additional District Court,

Erode, it is observed that the marriage between the appellant and the

respondent was solemnized on 06.11.2006. Since the respondent was

pregnant by the appellant before the marriage, the respondent’s parents and

relatives took efforts and arranged the said marriage. After the marriage, a

female child was born in the month of January 2007 and only thereafter, the

respondent had left from the matrimonial home. The appellant has stated in

his petition that from the date of marriage, the respondent misbehaved with

him and caused mental cruelty to him, and in order to prove the same, he

has examined 4 witnesses before the Court below including him, but no one

has stated about the alleged cruelty by the respondent except the appellant.

Further, the appellant has stated in his petition that the respondent had left

from the home in the month of April 2007 and after she left, he went to the

respondent’s parents’ house within two months and requested the respondent

to join with him but the respondent refused to come and abused him in filthy
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C.M.S.A.No.20 of 2014

words in presence of his friend. But, at the time of cross examination before

the Court below, the appellant has deposed that they did not have any

dispute until September 2007, and therefore, the Lower Appellate Court has

come to the conclusion that the statement of the appellant that the

respondent scolded him with filthy words in her parental house is false one.

8. The appellant has further stated in his petition that his mother had

committed suicide on 17.06.2007 as she was unable to tolerate the

dissatisfaction of his marital life. But, it is an admitted fact that since the

appellant had made the respondent pregnant before the marriage itself, his

parents have not given willingness for his marriage and only the respondent’s

parents and relatives had arranged his marriage. It is also an admitted fact

that after the marriage, within two months a female child was born to the

respondent i.e. in the month of January 2007 and after the birth of the child,

the respondent lived with the appellant only for two months and thereafter

left to her parental home in the month of April 2007. So the respondent had

lived with the appellant only for four months after the marriage and therefore,

she would not be the cause for the death of the appellant’s mother and only

the appellant who married the respondent without the consent of his parents

and who made the respondent pregnant before the marriage would be the

cause for the death of his mother.

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C.M.S.A.No.20 of 2014

9. Moreover, the appellant has stated in his petition that two rowdies

came to his office and threatened him that not to proceed the divorce petition

against the respondent and at the time of such threatening took place in his

office his co-employees were also available there. But while he was cross

examined in this regard before the Court below, none of his colleagues were

examined on the side of him to substantiate the alleged threatening.

Furthermore, the appellant has stated in his petition that originally he filed a

petition for divorce in HMOP.No.72 of 2008 before the Principal Subordinate

Court, Erode, and when the case was posted for appearance of parties, the

respondent was not willing to dissolve the marriage and therefore it was

dismissed on 26.06.2008. Further, he himself has admitted in his deposition

that after filing the said divorce petition, the respondent had come to meet

him, but he had not met her. So, in view of the observations made by this

Court, it is clear that the appellant before the marriage itself made the

respondent pregnant, and after the marriage, misbehaved with her and

committed cruelty to her and finally sent out her from the matrimonial home.

Thereafter, in spite of the respondent had come and tried to live with him, he

avoided her and tried to get divorce from her by filing a petition. The Lower

Court without considering the same erroneously granted divorce on

05.01.2011 and therefore the Lower Appellant Court has set aside the same.

Hence, this Court is not inclined to interfere the same.

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C.M.S.A.No.20 of 2014

V.BHAVANI SUBBAROYAN.J.,

raja

10. 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.

31.01.2020
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order

To
C.M.S.A.No.20 of 2014

1. The Second Additional District Court, Erode.

2. The Principal Sub Court, Erode.

3. The Section Officer, VR Section, High Court, Madras.

31.01.2020

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