(Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA, J.) This appeal has been filed challenging the order of the Family Court dated 02.07.2003 dismissing the appellant's application for divorce on the ground of cruelty, filed against his wife. In this appeal, though notice was duly served on the respondent/wife as early as 07.02.2009 through Court, the respondent has chosen not to take any steps either to appear in person or through counsel. We have therefore decided to proceed with the appeal on merits.
2.We heard Mr.R.Subramanian, learned senior counsel appearing for the appellant.
3.The brief facts which are required to be stated are that the appellant and the respondent got married on 28.05.1978 according to Hindu Rites and Customs. Initially, they were stated to have been living as husband and wife at Dharapuram and subsequently on transfer, the appellant stated to have shifted to Coimbatore on 29.09.1978, where he is stated to have settled down. According to the appellant, the marriage was a short lived one inasmuch as the respondent left the matrimonial home on 20.10.1978. It is also the case of the appellant that to his knowledge, the respondent was stated to have had intimacy with somebody else even prior to the marriage and that even after the marriage, she continued to maintain the said relationship, which was not liked by the appellant. It is stated that when the appellant advised her to correct herself, the respondent instead of correcting herself, decided to leave the matrimonial home on and after 20.10.1978. The appellant has further alleged in his application before the Court below that he was also physically assaulted, at the instance of the respondent, with the help of rowdy elements and he was beaten with chappals, in which process, he sustained injuries. It is further alleged that one of the aids of the father of the respondent went to the extent of removing the sacred thirunamam from the forehead of the appellant. The appellant has also alleged that at the time when the respondent left the matrimonial home, she was confined but subsequently it came to light that she underwent D & C and after sometime, had an abortion on 29.04.1979. It is also stated that earlier the appellant moved the II Additional Family Court, Coimbatore in O.P.No.132 of 1984 for divorce on the ground of desertion by the respondent and that though initially, the trial Court granted the decree for divorce, the same was set aside in appeal, by the learned District Judge, Coimbatore in C.M.A.No.80 of 1986 on 02.03.1987, which was also confirmed in C.M.S.A.No.57 of 1987 by this Court on 14.10.1988 as well as by the Hon'ble Supreme Court in S.L.P.(Civil) No.15597 of 1988 dated 10.02.1995. In the meantime, the respondent is stated to have filed O.S.No.1559 of 1986 before the District Munsif, Coimbatore for maintenance, which was decreed on 29.04.1991. The said decree was however set aside in A.S.No.145 of 1991 on 23.09.1991 by the Principal Sub Judge, Coimbatore. The respondent is stated to have preferred second appeal in S.A.No.67 of 1992 and in the said second appeal, a compromise decree came to be granted on 17.07.2002. As per the decree of compromise, the appellant agreed to pay a sum of Rs.75,000/- by way of one time settlement towards maintenance claimed by the respondent. Both parties agreed to file necessary application in the pending H.M.O.P. No.608 of 2001 for converting the said O.P. as one for divorce by consent under Section 13 B of the Hindu Marriage Act. The said compromise memo signed by the appellant, respondent and the respective counsel on 17.07.2002 was accepted by this Court and a decree in terms of the said compromise memo was also granted. However, subsequent to the said decree, though the appellant appeared before the Court below for carrying out necessary amendment, the respondent is stated to have abandoned, since as could be seen from the various dates of hearings posted by the Court below from 14.08.2002 till the impugned order came to be passed on 02.07.2003. The O.P. was posted on 14.08.2002, 19.09.2002, 06.11.2002, 10.01.2003, 29.01.2003, 26.02.2003, 28.03.2003, 09.04.2003, 05.05.2003, 23.06.2003, 26.06.2003 and 02.07.2003.
4.After several dates of hearing, the Court below ordered for fresh notice on 05.05.2003. The hearing of the O.P. was posted to 26.06.2003, as per the docket entry dated 23.06.2003. Inspite of sufficient service of notice, the respondent absented herself and therefore, she was set exparte. The appellant was examined as P.W.1 and the case was again posted on 26.06.2003. On 26.06.2003 also, there was no representation on behalf of the respondent. Thereafter, the Court below after hearing the appellant, posted the O.P. for orders on 02.07.2003, on which date, the Court below passed the impugned order holding that since necessary joint application for mutual divorce by consent was not filed as per the memo of compromise, the appellant's application for divorce cannot be allowed. The Court below accordingly dismissed the appellant's application for divorce.
5.Having heard Mr.R.Subramanian, learned senior counsel for the appellant and having perused the impugned order, the allegation of cruelty alleged in the O.P. filed by the appellant as well as the memo of compromise entered into between the parties which form part of the judgment of this Court dated 17.07.2002 in S.A.No.67 of 1992, we are of the considered opinion that no useful purpose would be served by dismissing the appellant's application for divorce. It is relevant to note that while marriage was stated to have been solemnised on 28.05.1978, the parties parted company as husband and wife as from 20.10.1978. Nearly more than 30 years have gone by and the appellant and the respondent were not able to live together all these years. The appellant, who was 27 years old at the time of his marriage, has spent very valuable part of his life without the company of the respondent and he is now 58 years old. The respondent having agreed to receive the sum of Rs.75,000/- as one time maintenance, has also consented for filing an application for divorce, however, for reasons best known to her, inspite of service of notice by the Court below, she did not appear before the Court below for filing necessary application to amend the petition filed by the appellant as one under Section 13 B of the Hindu Marriage Act. The Court below had therefore no other option except to set her exparte. Even before this Court, as stated by us earlier, inspite of due service of notice through Court, she has chosen not to appear either in person or through counsel. It is therefore quite apparent that the respondent is totally disinterested in the petition filed by the appellant for divorce on the ground of cruelty. Inasmuch as she got her one time maintenance of Rs.75,000/-, which was paid by the appellant on the very date when the compromise memo dated 20.07.2002 was filed, by way of demand draft bearing No.326229 dated 15.07.2002 she failed to fulfill the other part of the compromise decree deliberately. Moreover, though as per the compromise memo, the parties agreed to seek for divorce by way of mutual consent, it cannot be held that merely because one of the parties deliberately exhibited disinterest to pursue the said course, the very application for divorce does not merit any consideration.
6.We are of the considered opinion that even though the respondent did not cooperate with the appellant for amending the application for divorce as one under Section 13 B of the Hindu Marriage Act, the Court below was not in any way precluded from considering the claim of the appellant for divorce on the grounds alleged in the petition. In fact, the respondent did not even bother to file any counter statement to the O.P. for divorce filed by the appellant. Therefore, whatever allegations levelled by the appellant as against the respondent remained uncontroverted and when the appellant went into the box and deposed in support of his claim made in the application for divorce, which evidence was also not rebutted by the respondent either by way of cross-examination of the appellant or by way of letting in any other evidence contrary to whatever stated by the appellant before the Court below, the Court below having set the respondent exparte ought to have proceeded to grant the decree as prayed for.
7.In our view, in the light of the fact that there was a compromise decree in S.A.No.67 of 1992 dated 17.07.2002 which disclose that the respondent had taken a decision to agree for divorce and she having received one time maintenance as per the said compromise decree, chose not to appear before the Court below, the Court below ought to have considered the claim of the appellant for divorce on the grounds raised by him in the said O.P., for which, there was no demur on the part of the respondent and should have proceeded to grant the decree as prayed for.
8.For all the above stated reasons, we are not in a position to sustain the order of the Court below and while setting aside the same, we deem it appropriate to allow this appeal as well as the H.M.O.P.No.608 of 2001 filed by the appellant for divorce. The appellant is entitled for a decree for divorce on the ground of constructive desertion as well as cruelty, which was supported by the unrebutted allegation contained in the O.P. as well as the other evidence placed before the Court below in support of the said claim. The appeal stands allowed. No costs. It is needless to state that the appellant should wait for the expiry of the statutory period of 90 days for getting remarried.
mmi To The Family Court, Coimbatore