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Madras High Court
S.Veerasamy vs N.Vimala on 26 February, 2024
C.M.S.A.(MD)No.2 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 08.01.2024
PRONOUNCED ON : 26.02.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.S.A.(MD)No.2 of 2017
S.Veerasamy … Appellant / Appellant / Petitioner
Vs.
N.Vimala … Respondent / Respondent/ Respondent
PRAYER: Civil Miscellaneous Second Appeal filed under Section 28 of
Hindu Marriage Act, 1955 read with U/S 100 of CPC, to set aside the
Judgment and decree dated 20.10.2016 passed in C.M.A.No.11 of 2011 by
Principal District Judge, Karur by confirming the Judgment and decree of
the Principal Subordinate Judge, Karur passed in H.M.O.P.No.51 of 2009
dated 06.06.2011.
For Appellant : Mr.I.Vel Pradeep
For M/s.S.Vijayashanthi
For Respondent : Mr.S.R.A.Ramachandran
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C.M.S.A.(MD)No.2 of 2017
JUDGMENT
This Civil Miscellaneous Second Appeal has been preferred against
the Judgment and decree dated 20.10.2016 passed in C.M.A.No.11 of 2011
by the Principal District Judge, Karur by confirming the Judgment and
decree of the Principal Subordinate Judge, Karur passed in H.M.O.P.No.51
of 2009 dated 06.06.2011.
2. For the sake of convenience, the parties are referred herein as per
their rank before the Trial Court.
3. The petitioner is the husband and the respondent is the wife. The
petitioner / husband filed a petition under Section 13 (1) (ia), (ib) of Hindu
Marriage Act, 1955, seeking to dissolve the marriage between the
petitioner / husband and the respondent / wife by decree of divorce on the
grounds of cruelty and desertion.
4. The case of the petitioner:
(i) According to the petitioner, the marriage between the petitioner
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C.M.S.A.(MD)No.2 of 2017and the respondent was solemnized on 03.02.2006, as per the Hindu
Sastric rites and customs of the community at Sri Balaji Mahal, Vellakovil,
Kangeyam Taluk in the presence of the parents of the parties, relatives and
friends. After the marriage, the petitioner and the respondent commenced
their matrimonial life in their matrimonial home at Cuddalore Village,
Aravakurichi taluk in the month of Febraury, 2007. At the time of
marriage the respondent’s parents presented 30 sovereigns of Gold jewelry
as seervarisai to the respondent / wife, along with cot and bed and almirah.
Out of the wedlock a male child namely Adith Vikash was born to the
petitioner and the respondent. At the time of filing the H.M.O.P petition,
the child was 2 years old. At the first instance, the marriage went smoothly
and the petitioner and the respondent lived happily as a husband and wife
only for a few months. Thereafter, the respondent did not pay any attention
to the advice of the petitioner and also refused to discharge her duties as a
dutiful Hindu wife. In due course, the respondent began to quarrel with the
petitioner without any reason and without giving respect to the petitioner
and his family members. Very often, she went to her maternal home
without the consent and knowledge of the petitioner and she herself would
come back to the matrimonial home. The respondent insulted and ill-
treated the petitioner in front of the relatives and friends of the petitioner
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C.M.S.A.(MD)No.2 of 2017
that he is an uneducated person. The respondent is a post graduate and she
was working as a Lecturer in Arungaraiamman Arts Science College
Chinnadharapuram and she was also working as an LIC Agent. The
petitioner is just qualified in 9th standard and he is an agriculturist. The
behaviour of the respondent had affected the petitioner mentally to a great
extent.
(ii) Considering the better future life of his children all the efforts
taken by the petitioner to cope up with the respondent went in vain.
However, the quarrels of the respondent increased day after day. While so,
in the month of February 2007, the respondent voluntarily left her
matrimonial home with all her jewelry and went to her maternal home
without the knowledge and consent of the petitioner. All the efforts taken
by the petitioner to bring back the respondent to their matrimonial home
proved futile. In the month of February 2009, the well-wishers and close
relatives of both the families intervened in the matter and convened a
Panchayat at the house of the respondent. However, the respondent
categorically stated that she will not come back to matrimonial home and
cannot lead a peaceful life with the petitioner. Despite the intervention of
elders of both the families with adamant attitude, the respondent refused to
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C.M.S.A.(MD)No.2 of 2017
come and live with the petitioner. Hence, the petitioner came to the
conclusion that there was no possibility for the reunion of the petitioner
with the respondent. Since the respondent has deserted the petitioner for
the past two years, the petition for divorce on the grounds of desertion and
cruelty, came to be filed.
5. The case of the respondent:
(i) The respondent had filed a counter refuting each and every
allegations putforth by the petitioner in his divorce petition. Admitting
that the marriage between the petitioner and the respondent was held on
03.02.2006 at Sri Balaji Mahal, Vellakovil, Kangeyam Taluk in the
presence of both the families, relatives and friends and that the same was
an arranged marriage, conducted as per Hindu Kongu Velalar Gounder
rites and customs. The respondent proceeded to submit in her counter that
she was given with 40 sovereigns gold jewelry as demanded by the
petitioner’s family. That apart, Rs.1,00,000/- (Rupees One Lakh only) cash
and home appliances including cot and almirah were also given. She
further submitted that the marriage expenditure was shared by both the
families equally. The respondent submitted that the petitioner, apart from
doing agriculture, he was also running a money lending business. Denying
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C.M.S.A.(MD)No.2 of 2017the submissions of the petitioner that the respondent was continuing to
work as a Lecturer in Arungaraiamman Arts Science College
Chinnadharapuram, she submitted that at the time of pregnancy, she
resigned her job. They were blessed with a male child namely
Adith Vikash and he was born on 16.11.2006.
(ii) According to the respondent, the petitioner was a man of strange
behaviour and mannerisms. He was an adamant person and enforced his
ideals on all the other persons including his parents. After the delivery of
the first child, the respondent / wife became pregnant during the period
between 2017 and 2018. The petitioner had consulted an astrologer and
believed that the conceived child was only a female child. Accordingly, he
compelled the respondent / wife to abort the pregnancy. However, since the
doctors refused to do the same, the respondent negated the idea of the
petitioner to abort the second pregnancy. Finally, on 10.04.2019, the
petitioner himself forcefully chased away his pregnant wife / respondent
out of their matrimonial home, compelling her to abort the foetus. Left
with no other option, the respondent / pregnant wife went to her maternal
home. On 25.10.2009, at Kangeyam Shanmugapriya Hospital, a girl child
was born. The respondent strongly contended that she had never failed to
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C.M.S.A.(MD)No.2 of 2017
do her duties as a dutiful Hindu wife to her husband. She further submitted
that the allegations of misbehaviour and humiliations on the petitioner and
his parents by the respondent are utter false. In reality, the petitioner
inflicted strange mental abuses on the respondent because of his inferiority
complex and ridiculous behaviour. The respondent was seriously initiating
steps for reconciliation with her husband and by all means she was not
ready for a divorce and sought for dismissal of the petition seeking
divorce.
6. The learned Trial Court had framed two issues. Following which,
the petitioner was examined as P.W-1 and one document was marked on
the side of the petitioner. The respondent was examined as R.W-1 and two
documents were marked on the side of the respondents.
7. On the basis of the evidence and the arguments submitted by the
respective parties, the learned Trial Court proceeded to observe that the
petitioner had miserably failed to prove the allegations, namely,
(i) That the respondent compelled him to be a domestic husband in
her maternal home;
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(ii) The respondent never treated her husband and his parents with
dignity and respect; and that
(iii) She always treated him with cruelty by adducing cogent
evidence, relevant documents and appropriate arguments.
Though it is submitted by the petitioner that the respondent had
misbehaved and humiliated him before his parents, friends, relatives and
other persons and such instances resulted in mental anxiety, he miserably
failed to prove the same with appropriate evidence. On that basis, the
learned Trial Court proceeded to conclude that the petitioner / husband had
miserably failed to prove that the respondent inflicted cruelty on him.
8. The second question is one of desertion. The contention that the
respondent deserted the petitioner by the month of February 2007,
voluntarily leaving her maternal home was also not decided in favour of
the petitioner by the learned Trial Court. Though the petitioner has
contended that the respondent voluntarily deserted the petitioner on
February 2007 EX.R-2 birth certificate of the second child born on
25.10.2009 would disprove the same. At the time of cross examination, the
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C.M.S.A.(MD)No.2 of 2017
petitioner did not refuse that the second child is not his child. On the other
hand, he only said that he was not informed about the birth of his daughter.
Hence, the allegation that the respondent voluntarily deserted the petitioner
as early as in the month of February 2007 was disproved. On that basis, the
learned Trial Court held that the ground of desertion pleaded by the
petitioner had no locus standi. However, the respondent both in her counter
and at the time of evidence, both while chief examination and cross
examination categorically stated that she always intended to rejoin and live
a peaceful life with the petitioner. Accordingly, the learned Trial Court
dismissed the said HMOP.
9. As against the same, the petitioner / husband preferred a Civil
Miscellaneous Appeal in C.M.A.No.11 of 2011 before the Principal
District Judge, Karur. The learned First Appellate Court has framed three
issues. During the pendency of the said Civil Miscellaneous Appeal, the
respondent / wife filed a Guardian O.P.No.17 of 2011 seeking the custody
of her first child, that is, her son namely Adith Vikash. However, the
learned Trial Court, vide order, dated 10.12.2015 had allowed the said
petition by permitting the respondent / wife to meet her son with certain
conditions periodically. Seeking to mark the order and decreetal order
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passed by the learned Trial Court on 10.12.2015 in Guardian O.P.No.17 of
2011, I.A.No.209 of 2016 came to be filed by the petitioner. Since the
respondent did not file any counter, the learned First Appellate Court
allowed the said I.A.No.209 of 2016, thereby, marking the Judgment and
decree in Guardian O.P.No.17 of 2011 dated 10.12.2015 as Ex.P-2 and
Ex.P-3 respectively.
10. As far as the issue pertaining to the grant of divorce to the
husband is concerned, regarding the argument of the petitioner / husband’s
counsel was that the respondent had inflicted cruelty on the petitioner /
husband by lodging several complaints as against the petitioner. The
learned District Judge proceeded to observe that the allegations has not
been proved by appropriate evidence and not even a single FIR was
registered at the instance of the respondent / wife as against the petitioner /
husband. That apart, the learned District Judge further observed that the
petitioner filed the application for divorce on 24.04.2009 and not even any
criminal case has been lodged by the respondent as against the petitioner /
husband before the filing of the divorce petition and the same has been
brought on record by both the Trial Court and the First Appellate Court.
The First Appellate Court categorically recorded the fact that the
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C.M.S.A.(MD)No.2 of 2017
respondent / wife never intended or lodged any complaints in actual terms
as against the petitioner / husband by all means at any point of time before
the date of application filed by the petitioner, that is, on 24.04.2009. The
learned District Judge negated the arguments substantiated by the
petitioner / husband that the respondent / wife inflicted mental abuses and
cruelty as against the petitioner / husband and held that the petitioner had
miserably failed to prove his allegations of cruelty. That apart, the
petitioner’s claim that the respondent had deserted from her matrimonial
home in the month of February 2007 was also negated.
11. A careful perusal of the records would reveal that the second
delivery of the girl child was on 25.10.2009 and the petition for divorce
has been filed by the petitioner within a few months of the pregnancy of
the second child, that is, on 24.04.2009. Observing the fact that in terms of
Section 13 (1) (ib) of Hindu Marriage Act, 1955 under the grounds of
desertion, the couple should have been separated at least for a period of
two years before the date of filing of the petition for divorce, recording the
fact of the birth of the second child on 24.04.2009 would disprove the case
of desertion by the petitioner / husband. Accordingly, the learned District
Judge dismissed the said Civil Miscellaneous Appeal. Challenging the
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C.M.S.A.(MD)No.2 of 2017
same, the present Civil Miscellaneous Second Appeal came to be filed.
12. The substantial questions of law framed in this CMSA are as
follows:
“(i) Whether the Courts below right in dismissing the
petition and appeal by the appellant for seeking relief of
dissolution of marriage, when both the parties agreed that
they were deserted each other for more than 2 years at the
time of trial without considering the apex Court decisions
as long separation and irretrievable breakdown are
impossible for re-union?
(ii) Whether the Courts below right in dismissing the
appeal by confirming the judgment and decree of lower
Court of dismissal order for the relief of dissolution of
marriage on the ground of cruelty, when there is a clear
admission made by the respondent as she used to give
several criminal complaints to the police officials?”
13. This is the case where the petitioner / husband sought for divorce
on the grounds of cruelty and desertion on the basis of the evidence and
documents made by the respective parties. Both the Trial Court and the
First Appellate Court has concurrently found both the H.M.O.P.No.51 of
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C.M.S.A.(MD)No.2 of 2017
2009 and C.M.A.No.11 of 2011, unfit for allowing, for the reason that the
petitioner / husband miserably failed to prove the allegations of mental
cruelty as inflicted on him by the respondent / wife and the allegations of
desertion with effect from February 2007 before filing of the petition for
divorce on 24.04.2009. The factum of the birth of the second child /
daughter by the respondent / wife on 25.10.2009 itself would disprove the
entire allegations of the petitioner / husband. The Hon’ble Apex Court in
the case of Vishwanath Agrawal .Vs. Sarla Vishwanath Agarval reported in
(2012) 7 SCC 288 has dealt with a case of concurrent finding by the Trial
Court and the First Appellate court and has held that the High Court in a
second appeal should not disturb the concurrent findings of fact unless it is
shown that the findings recorded by the Courts below are perverse being
based on no evidence or that on the evidence on record no reasonable
person could have come to that conclusion. The relevant portion of the
same is extracted as follows:
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C.M.S.A.(MD)No.2 of 2017
37. In Vidhyadhar v. Manikrao it has been ruled that the
High Court in a second appeal should not disturb the concurrent
findings of fact unless it is shown that the findings recorded by
the courts below are perverse being based on no evidence or that
on the evidence on record no reasonable person could have come
to that conclusion. We may note here that solely because another
view is possible on the basis of the evidence, the High Court
would not be entitled to exercise the jurisdiction under Section
100 of the Code of Civil Procedure. This view of ours has been
fortified by the decision of this Court in Abdul Raheem v.
Karnataka Electricity Board.”
14. Fully fortified by the judgment by Hon’ble Apex Court and fully
satisfied by the concurrent findings of the fact as recorded by the learned
Trial Court and the learned District Court, Karur and the reasoning therein,
holding that the decisions of both the lower Courts are fully supported by
the evidence, I am not inclined to interfere with the Judgment and decree
passed by the learned Principal District Judge, Karur in C.M.A.No.11 of
2011 and the learned Subordinate Judge, Karur in H.M.O.P.No.59 of 2009.
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15. Accordingly, this Civil Miscellaneous Second Appeal is
dismissed. There shall be no order as to costs.
26.02.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Sml
To
1.Principal District Judge,
Karur.
2.The Principal Subordinate Judge,
Karur.
Copy to
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.S.A.(MD)No.2 of 2017
L.VICTORIA GOWRI, J.,
Sml
C.M.S.A.(MD)No.2 of 2017
26.02.2024
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