This Civil Miscellaneous Second Appeal has been filed against judgement and decree made in C.M.A.No.42 of 2005, dated 13.3.2006, on the file of the Additional District and Sessions Judge(Fast Track Court No.II), Tuticorin confirming the judgement and decree made in H.M.O.P.No.131 of 2005, dated 7.3.2005 on the file of Sub-Court, Tuticorin.
2.The wife is the appellant. The Petition for divorce filed by the husband on the ground of cruelty and desertion was allowed by the trial Court. The said judgement was confirmed by the Lower Appellate Court. In support of his claim of cruelty, the Petitioner/husband has averred in his petition as follows:-
The marriage between them was solemnized on 29.11.1984 and a girl child was born to them out of the wedlock on 28.9.1986.Thereafter, they were residing at Doovipurm third street, Thoothukudi. The Petitioner was employed as Professor in Kamaraj College. The respondent, who is an under- graduate has completed her post-graduation after marriage and that the respondent had refused to live in the joint family and had insisted to set up a separate residence. The respondent also became Lecturer in Annamalai College. After getting employment, the respondent did not give any respect to the Petitioner and refused to go and live with him in the new house constructed by him, because it was constructed with the assistance of the father of the Petitioner. She described the father of the Petitioner as Saturn and refused to live in the house claiming that she will not be comfortable there. It is also stated that she refused to attend the funeral of the Petitioner's father. It is further alleged that the respondent accused that the Petitioner is having illicit intimacy with his brother's wife. She even made the said accusation in the presence of others thereby creating uncomfortable situation for the Petitioner to live with her. In the year 2002, it is claimed that the respondent insisted the Petitioner to transfer the house in her name and when that was refused, she addressed him in singular and abused him in vulgar language. It is also claimed that she performed poojas engaging Thanthrics without the permission of the Petitioner. On 23.9.2003, he found that a registered letter addressed to him was thrown in the corner of the house and when she was questioned, she picked up broom-stick and beat up the Petitioner with it. All these activities resulted in undue hardship and cruelty to the Petitioner and therefore the Petitioner sought for divorce on the ground of cruelty as well as desertion.
3.The respondent resisted the claim of the Petitioner denying all those averments and contended that she lived as a dutiful wife. She also produced photographs to show that they lived happily. She would contend that she also discharged the loan that was availed for the purchase of the new house and that she has every right over the house.
4.Upon the above pleadings, the trial Court framed the following issues:
1.Whether the Petitioner is entitled for a decree of divorce as prayed for in the Petition?
5.The Petitioner examined himself as P.W.1 and one Kasirajan was examined as P.W.2 and Ex.P1 to Ex.P3 were marked. The respondent examined himself as R.W.1 and Ex.R1 to Ex.R14 were marked.
6.Upon consideration of both oral and documentary evidence, the trial Court reached the conclusion that the respondent is guilty of cruelty as well as desertion. The claim of the respondent that she did not commit any cruelty was disbelieved. The Petitioner is a Ph.D Degree holder. The learned Trial Judge has found that the evidence of P.W.1 corroborated by the evidence of P.W.2 is quite natural and convincing. It has also recorded a categorical finding that the respondent has treated the Petitioner with cruelty and even beating up the Petitioner with broom-stick has been believed by the trial Court. Upon such findings, the trial Court after referring to the decisions of this Court as well as the Honourable Apex Court, concluded that the Petitioner is entitled to the relief of divorce on the ground of cruelty and desertion.
7.Aggrieved, the respondent had preferred an appeal in C.M.A.No.42 of 2005 before the Lower Appellate Court(Additional District Court, Thoothukudi).The Lower Appellate Court has also concurred with the trial Court with reference to the allegations of cruelty and concluded that the trial Court was justified in granting a decree of divorce.
8.I have heard the submissions of Ms.J.Maria Rubit, learned counsel for the appellant and Mr.Rajkumar, learned counsel appearing for the respondent.
9.The following questions of law have been framed by this Court at the time of admission:
1.Whether the finding of the Courts below that the Appellant committed acts of cruelty warranting a decree for divorce is perverse for the reason that reference been made with regard to certain incident which were not pleaded, deposed proved and certain allegations which were pleaded but not deposed and some depositions without pleadings?
2.Whether the Lower Appellate Court erred in law in not accepting the additional documents under Order 41 Rule 27 of the Code of Civil Procedure, filed by the appellant especially when the veracity of the case was not disputed?
3.Whether the judgement of the Lower Appellate Court is vitiated for its failure in not framing the points for determination as contemplated under Order 41 Rule 31 of the Civil Procedure Code?
10.Both the Courts below have analyzed the evidence and have recorded findings to the effect that the appellant wife has consistently ill-treated the husband and behaved in such a manner that the respondent/husband was disrespected in the presence of others. There cannot be more cruelty by a wife than that of beating the husband with broom-stick. I do not find any error in the appreciation of evidence by the Courts below nor any reason to interfere with the concurrent findings of the Courts below. Therefore I answer the first question of law against the appellant and once it is found that series of incidents of cruelty has been proved, the fact that some of the incidents were not mentioned in the pleadings, cannot be put against the husband. After all, matrimonial proceedings are summary proceedings and strict rules of pleadings cannot be applied to them. The other two questions of law do not arise for consideration. The documents sought to be produced by the appellant before the Lower Appellate Court are not germane to the issue involved and the Lower Appellate Court has rightly refused to entertain the documents since the provisions of Order 41 Rule 27 has not been satisfied. I do not find any perversity in the appreciation of evidence by the Courts below so as to enable me to interfere with their concurrent findings.
11.Accordingly, this Civil Miscellaneous Second Appeal is dismissed, confirming the judgements of the Courts below, granting divorce in favour of the respondent/husband. Consequently, connected Miscellaneous Petition is dismissed. No costs.
To
1.The Additional District and Sessions Judge, (Fast Track Court No.II), Tuticorin.
2.The Sub-Judge, Tuticorin.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. .