IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.11.2017 CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
C.M.A.Nos.2252 and 2253 of 2012
and M.P.No.1 of 2012
T.L.Sivakumar ... Appellant in both the CMAs Vs.
Sumithra @ Sumithraa Shri ... Respondent in both the CMAs Common Prayer:- Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act, 1984, against the decreetal order and fair order made by the learned III Additional Family Court Judge, Chennai, in O.P.Nos.1101 of 2008 and 1019 of 2010, dated 19.03.2012 and pray for setting aside the same.
For Appellant : M/s.P.V.Rajeswari For Respondent : Mr.S.K.Chandru ***
COMMON JUDGMENT
[Judgment of the Court was delivered by M.V.MURALIDARAN,J.] Both the Civil Miscellaneous Appeals have been filed by the appellant / husband as against a Common Order of dissolution of marriage passed by the Family Court at the instance of respondent /wife, by way of Petition in O.P.No.1101 of 2003 filed for dissolution of marriage under Section 13(1)(a) of Hindu Marriage Act 1955 and the other one is against the dismissal of the appellant’s petition in O.P.No.1019 of 2010 filled under Section 9 of the Hindu Marriage Act 1955 for the Restitution of Conjugal Rights.
2. The brief facts required for the disposal of the above C.M.A.s runs as follows that the marriage between the appellant and the respondent took place in the year 1996 in Kovilpatti Town as per Hindu Rights and Customs. During their marriage, the respondent was studying 2nd year of her Under Graduate degree in a private college at Chennai. It was agreed upon by the appellant that till her completion of studies, the respondent would stay at Chennai. The appellant herein is a Diploma holder in Textile Technology and was engaged in business in Coimbatore city. Soon after marriage, their life went unpleasant due to perpetual difference of opinions and the consequential quarrel between the appellant and the respondent, which made them to knock the doors of the Court for above stated reliefs.
3. It is the case of the respondent that after completion of her studies in the year 1997, the appellant failed to take her to Coimbatore as assured by him. Whereas by deserting the respondent for considerable period between 1998 and 1999, in a very few occasion the appellant visited her at her parental home.
4. Thereafter, in the year 1999 by intervention of some elders in the family, the appellant and respondent lived together for some time, wherein the appellant ill-treated her and acted cruelly. In the meantime the respondent came to her parental home for the delivery of the child and thereupon delivered a male baby on 5th March 2000. However, the appellant had not turned back to see either the petitioner or the child for a period more than seven months.
5. The respondent had not visited or concerned about the welfare of the petitioner or the baby, thereupon having left hapless the respondent joined a job in the year 2003. In said circumstance, all of a sudden after 2 years of non - communication the appellant http://www.judis.nic.icnontacted and demanded her not to join in any job. However, she was not in a position to evade the job, as the appellant have not taken care or shown any interest either on her or on the child, with regard to her right from the date of marriage and with regard to the child. Thereafter she joined the said job and she was deployed in abroad.
6. Since from the date of marriage the respondent suffered from serious mental tortures and harassments by appellant’s behavior, acts and having lost her hope, she noticed the appellant on 19.03.2007 demanding Divorce. However as there was no reply from the appellant, the respondent came up with the above Petition in O.P.No.1101 of 2003 filed for dissolution of marriage under Section 13(1)(a) of Hindu Marriage Act, 1955.
7. Thereupon, the appellant entered appearance in the above O.P. and by denying all the allegations and reasoning the respondent as sole cause of all problems, prayed for dismissal of the petition. Subsequently in the year 2010 he also had filed a petition in O.P.No.1019 of 2010 under Section 9 of the Hindu Marriage Act 1955 for the Restitution of Conjugal Rights praying for a direction to the respondent for reunion. However the Learned Judge on erroneous appreciation of facts and law, vide a Common Order impugned herein had passed of decree of dissolution of marriage of the appellant and respondent by consequently dismissing the appellant’s petition in O.P.No.1019 of 2010 for the Restitution of Conjugal Rights. Hence the husband has come up with the above CMAs.
8. We heard M/s.P.V.Rajeswari, learned counsel for the appellant and Mr.S.K.Chandru, learned counsel for the respondent and the entire records are perused.
9. The prime contentions of the Learned Counsel for the appellant assailing the Impugned Order in nutshell is as following that the Learned trial Judge erred in rendering a finding that there was a long period of separation between the appellant and the respondent in as much as, the said finding is against Ex-R8 (Marriage invitation of petitioner sister) and the categorical admission of the respondent to the effect that even during her stay in abroad between 2005 and 2007, the appellant has been staying in the respondent’s house at Chennai by staying in the upstairs. Though several allegations of mental cruelty were made by the respondent, nothing remained established by her. In fact there was no cruelty caused to her and therefore there is no absolute ground for grant of decree of divorce as prayed for by the respondent.
10. The Learned Trial Judge erred in law in shifting the burden of proof on the appellant on the allegations of desertion and cruelty. In so for as the allegation that the appellant failed to maintain the respondent and the child, it is baseless and unsustainable in view of the exhibition of statement of accounts by the appellant showing the payment of lump sum amount every now and then between 2002 and 2005 in favour of the respondents brother and her father either by way of transfer of funds or by deposit. The Learned trial Judge apparently erred in holding that the appellant having been away from station due to his work caused mental cruelty to the respondent, whereas the fact remain that the appellant had give love and care towards the respondent and the child that can be ascertained from Exs.R5, R6 and R7 namely the LIC policy dated 22.03.2002, the corresponding payment receipt in Ex.R6 and Ex.R7 a Pass Book disclosing Recurring deposit made in the name of the minor child by the appellant.
11. Per Contra, the Learned counsel for the respondent would submit that the entire plea of the appellant is unsustainable and liable to be rejected, the same can be appraised from the fact that after a lapse of 3 ½ years from the respondent/wife filing a petition for divorce in O.P.No.1101 of 2008 and the same stood pending before the Court and that at the stage of cross examination of the respondent has filed a petition for Restitution of Conjugal Rights.
12. The appellant who failed to join the respondent for the past 14 years has come forward with this petition is only to harass the respondent and with an intention to spoil the life and career of the respondent and her son. In fact the child right from the birth is under the care and nourishment of the respondent parents right from the child’s birth it was the respondent’s parents helped the respondent for the growth of the child Master Arun Goutham morally, financially and socially.
13. It is further submitted that for the past 2 years the child is studying in St. Johns International Residential School in the residential school hostel and every Fridays he comes back to the respondent’s parents house and taken care by her parents and goes to the school on Monday morning. For the child’s good education and future the respondent spending nearly Rs.4 lakhs for his education.
14. Originally it is because of the attitude and behavior of the petitioner who left the respondent in lurch and abandoned her which forced her to eke out a job in U.K. to earn for herself and her child. Whereby, out of her earning she is taking care of herself and her child right from the day of birth. The appellant had not showed any interest, care towards the welfare of the child.
15. In view of the above facts involved in the case, this Court finds that the petitioner and respondent lived as husband and wife only for few days and there was no meaningful cohabitation between them for the past 14 years.
16. Though it is vehemently contended attracting this Court’s attention to Exs.R5, R6 and R7 by the learned counsel for the appellant that appellant always well wished for his son, there is nothing on record to show that he maintained his son by providing all basic requirements from birth. That apart this Court is not inclined to look into the version of the appellant that lump sum amounts were given to the respondent’s father and brother, as needless to say that it is neither substantiated by evidence nor more specifically pleaded and proved by the appellant.
17. The Records further reveal that after a lapse of 3½ years from the filing of petition for divorce in O.P.No.1101 of 2008 in the year 2008 and that at the stage of cross examination of the respondent has filed the above petition for Restitution of Conjugal Rights, which in the opinion of this Court a formal application in the usual course. If at all the appellant had been really willing for reunion, he would have very well filed a petition immediately after the alleged desertion made by the respondent or even thereafter he would have filed immediately after some time in the year 2008 or 2009 praying for such relief. Whereas after a lapse of 3 ½ years he had come up with the above petition. Moreover the petitioner should have approached at the early stage.
18. Admittedly the respondent unwilling to proceed with the marital life with the appellant had prayed for dissolution of marriage by alleging that out of 12 years of married life, they were hardly for months together.
19. At this juncture, this Court in view of the above fact do not find any fault with the Learned trial Judge’s view that the respondent apart from mental and physical cruelty but also underwent persistent mental cruelty out of long period of separation and as such the matrimonial bond is beyond repair. Again this Court is not in a position to differ with the view of the Learned Judge that long separation studded with mental cruelty reveal the marriage between the appellant and the respondent is broken down irretrievably with no possibility of reunions of the parties.
20. Therefore, this Court concludes that the impugned order herein do not suffer from any illegality or infirmity in holding that the respondent has established her case for dissolution of marriage with the appellant on the grounds of cruelty and desertion and thus the Learned Judge by allowing the respondent’s petition in O.P.No.1101 of 2003 filed for dissolution of marriage under Section 13(1)(a) of Hindu Marriage Act 1955 had rightly in consequence dismissed the Respondent’s O.P.1019 of 2010 for Restitution of Conjugal Rights.
21. In the result, both the Civil Miscellaneous Appeals fail and thus are hereby dismissed. Consequently, connected miscellaneous petition is closed. No costs.
(C.T.S.,J.) (M.V.M.,J.) 22.11.2017 vs Index:Yes/No Speaking order/Non-speaking order To
1. The III Additional Family Court Judge, Chennai.
2. The Section Officer, V.R.Section, High Court, Madras-104.
C.T.SELVAM,J.
and M.V.MURALIDARAN,J.
vs
C.M.A.Nos.2252 and 2253 of 2012
and M.P.No.1 of 2012
22.11.2017