Chennakrishnan vs Rajeshwari
2021 Latest Caselaw 17735 Mad

                                                                         CMA.No.74 of 2018


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED 31.08.2021

                                                   CORAM

                         THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
                                             and
                            THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

                                              C.M.A.No.74 of 2018

                     Chennakrishnan                                         .. Appellant

                                                   vs.

                     1.Rajeshwari
                     2.Rangaperumal                                         ...Respondents


                     Prayer: Civil Miscellaneous Appeal filed under Section 19 (1) of the
                     Family Court Act against the judgment and decree dated 26.10.2017
                     passed in F.C.H.M.O.P.No.161 of 2017 on the file of the Family Court,
                     Dharmapuri.


                                   For Appellant     : Mr.M.Selvam
                                   For R1            : Mr.V.Nicholas
                                   For R2            : Mr.B.Bharath kumar




                     1/8


https://www.mhc.tn.gov.in/judis/
                                                                                    CMA.No.74 of 2018


                                                     JUDGMENT

[Judgment of the Court was made by V.SIVAGNANAM, J.]

This Civil Miscellaneous Appeal arises against the order of the

Family Court, Dharmapuri, passed in F.C.H.M.O.P.No.161 of 2017 on

26.10.2017.

2. Brief facts of the case is that the appellant had filed a petition in

F.C.H.M.O.P.No.161 of 2017 seeking for divorce on the ground that the

first respondent who is the wife of the appellant had illicit relationship

with the second respondent and left the matrimonial home and the same

was dismissed by order dated 26.10.2017. Challenging the same, the

present appeal has been filed before this Court.

3.The learned counsel appearing for the appellant submitted that

the appellant had married the first respondent on 16.04.2008. The

appellant is a lorry driver by profession and thereby, he used to go out

https://www.mhc.tn.gov.in/judis/ CMA.No.74 of 2018

frequently to attend his profession and come home once in 15 days.

While being so, the first respondent developed relationship with the

second respondent and subsequently, on 14.03.2017, the first respondent

eloped with the second respondent and she had written a letter that she is

not willing to live with the appellant. Subsequently, the appellant gave a

complaint before the Kadathur Police Station on 21.03.2017 and

thereafter, he filed H.C.P.No.1158 of 2017. Subsequently, the first

respondent was produced before the Court and she refused to join with

the appellant. In such circumstances, the appellant filed a petition for

divorce before the family Court in H.M.O.P.No.161 of 2017 on the

ground that the second respondent, knowing fully well that the first

respondent is a married women, voluntarily had sexual intercourse with

the first respondent and caused cruelty to him. The first and second

respondents remind ex-parte before the trial Court. However, the trial

Court, without considering the oral and documentary evidence filed by

the appellant, dismissed the petition. The trial Court failed to consider the

fact that the first respondent eloped with the second respondent on

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14.03.2017 and expressed her willingness to live with the second

respondent and not to live with the appellant. The marriage life between

the appellant and first respondent has already been broken due to the

elopement of the first respondent with the second respondent. The

elopement of the first respondent caused mental pain to the appellant and

that the trial Court, without taking into account of the mental pain,

dismissed the divorce petition and thus, pleaded to allow the appeal.

4. In the appeal, notice was sent to the first respondent and

Mr.V.Nicolas learned counsel appeared for the first respondent and he

reported no instructions from the first respondent. Thereafter, a notice

was issued to the first respondent. However, the first respondent failed to

appear before this Court. Under these circumstances, this Court,

considering the arguments of the counsel for the appellant and the

materials available on record, is passing this order.

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5. Admittedly, the appellant has married the first respondent on

16.04.2008 at Kadathur and they were living together at the appellant’s

house. The appellant is working as a lorry driver and frequently he used

to go out of the house to attend his profession. While being so, it is

alleged that the first respondent had developed illegal intimacy with the

second respondent and in consequence of the illegal intimacy, the first

respondent left the matrimonial home on 14.03.2017 and continued her

illegal relationship. Thereafter, the appellant preferred a complaint

against the first respondent before the Kadathur Police Station on

21.03.2017 and also gave a complaint to the Superintendent of Police on

27.03.2017. These facts are evident by documents marked as Ex.P.2 and

Ex.P.3 filed before the trial Court. Apart from this, the appellant also

filed H.C.P.No.1158 of 2017 that was marked as Ex.P.8 before the trial

Court and the first and second respondents remind ex-parte before the

trial Court.

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6.The allegation of the appellant against the first respondent is

that she voluntarily had illicit relationship with the second respondent

and left the matrimonial home and living with the second respondent.

The conduct of the first respondent has caused mental pain to the

appellant. Further, the first respondent got separated from the appellant

from the year 2017 and there is no reunion between them and the parties

cannot reasonably be expected to live together. The Habeas Corpus

petition filed before this Court in H.C.P.No.1158 of 2017 is marked as

Ex.P.8 wherein, it is stated that the first respondent went out of the

matrimonial home without any intimation. The complaint filed by the

appellant before the Superintendent of Police and the Habeas Corpus

Petition in H.C.P.No.1158 of 2017 shows that the parties cannot

reasonably be expected to live together.

7.Under such circumstances, we are of the opinion that the grounds

for divorce are to be construed as proved by the appellant. The trial Court

failed to consider the evidence adduced by the appellant. Hence, we set

https://www.mhc.tn.gov.in/judis/ CMA.No.74 of 2018

aside the order of the trial Court passed in F.C.H.M.O.P.No.161 of 2017

dated 26.10.2017 and allow the appeal, and thus the marriage held

between the appellant and first respondent on 16.04.2008 is dissolved by

the decree of divorce.

8.In the result, this Civil Miscellaneous Appeal stands allowed. No

costs.

[M.K.K.S.J] [V.S.G.J] 31.08.2021

Index:yes/no Internet:yes vsn

https://www.mhc.tn.gov.in/judis/ CMA.No.74 of 2018

K.KALYANASUNDARAM,J.

and V.SIVAGNANAM,J.

vsn

C.M.A.No.74 of 2018

31.08.2021

https://www.mhc.tn.gov.in/judis/