in C.M.A.(MD) No.1268 of 2015 (Notice not necessary as the 2nd respondent was Exparte before court below) Regila Bai ...Respondent in C.M.A.(MD) No.1157 of 2015 Prayer in C.M.A.(MD) No.1268 of 2015: Appeal filed under Section 55 of the Divorce Act 1869, to allow this appeal and set aside the Fair and decreetal order made in I.D.O.P.No.63 of 2007 on the file of the District Judge, Kanyakumari at Nagercoil, dated 30.01.2015.
Prayer in C.M.A.(MD) No.1157 of 2015: Appeal filed under Section 47 of Guardian and Warts Act 1990, to set aside the order and decree made in G.W.O.P.No.141 of 2007 on the file of the District Judge, Kanyakumari at Nagercoil, dated 30.01.2015.
The appellant Manikandan got married to the first respondent Regila Bai on 12.02.2001 as per Christian rites. A male child Karanjith was born to them on 29.12.2001. The relationship between the parties came under considerable strain. There are criminal cases mutually registered against each other. The first respondent/wife filed Crime No.9 of 2006 alleging cruelty and dowry demand. The said case was filed not only against the appellant but against all the family members. It is stated that except the appellant the others were discharged. The appellant is presently facing a criminal trial. The appellant appears to have been beaten up by the brothers of the first respondent. Therefore, at the instance of the appellant Crime No.482 of 2006 was registered against the first respondent and her brothers.
2.The appellant has made an allegation that the first respondent/wife is having illicit intimacy but the finding of the Trial Court is that this allegation has not been established.
3.The learned counsel for the appellant also fairly submits that he withdraws the said allegation. However the first respondent had alleged that the appellant is having illegal intimacy with one Arshitha of Thenkapattanam but the first respondent has not established the said allegation made against the appellant herein. A mere look at the pleadings and the materials on record would show that there is bad blood between the parties.
4.The appellant filed I.D.O.P.No.63/2007 seeking divorce on the ground of cruelty on the part of his wife. He also filed G.W.O.P.No.141 of 2007 seeking custody of minor child. The Trial Court dismissed the G.W.O.P.No.141 of 2007 and also I.D.O.P.No.63 of 2007. Challenging the dismissal of the divorce petition the appellant has filed C.M.A(MD) No.1268 of 2015 and challenging the dismissal of the G.W.O.P he has filed C.M.A(MD) No.1157 of 2015.
5.The child was born in the year 2001, he must be aged around 16 years now. Therefore, it would not be in the interest of the boy to disturb the order passed by the Trial Court. Therefore, this Court confirms the order dated 30.01.2015 dismissed the G.W.O.P.No.141 of 2007.
6.The learned counsel for the appellant submits that the wife filed a maintenance case against the appellant. A sum of Rs.10,000/- was ordered to be paid. It is submitted that the appellant has been complying with the maintenance order till date. The appellant shall continue to pay the said sum of Rs.10,000/- per month to his wife. As per
Section 125 of Cr.P.C., the term of ?wife? includes ?divorced wife? also. The obligation of the appellant/husband to pay maintenance to the wife at Rs.10,000/- per month shall not cease on account of allowing of this appeal.
7.As already pointed out the respondent/wife has made a very serious allegation against the appellant. Her brothers had physically assaulted him leading to registration of criminal case. Therefore, the apprehension expressed by the appellant that it would be unsafe for him to live with the respondent/wife is very much justified. The parties have been living separately for the last 12 years.
8.Taking into account all these circumstances, this Court is of the view that the order dated 30.01.2015 in I.D.O.P.No.63 of 2007 has to be set aside. The marriage that took place between the parties on 12.02.2001 stands dissolved.
9.Accordingly, C.M.A.(MD) No.1268 of 2015 is allowed and C.M.A.(MD) No.1157 of 2015 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The District Judge, Nagercoil, Kanyakumari District.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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