Madras High Court
G.Felshia Vasanthi vs R.Sekar @ Gunasekar on 1 December, 2021
C.M.A.(MD) No.214 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD) No.214 of 2011
G.Felshia Vasanthi ... Appellant
-vs-
1.R.Sekar @ Gunasekar
2.Selvakumar ... Respondents
Civil Miscellaneous Appeal filed under Section 19(1) of the Family
Court Act, praying to set aside the Judgment and Decree dated 06.12.2010,
passed in I.D.O.P.No.34 of 2003, on the file of the Family Court, Madurai.
For Appellant : Mr.R.Alagumani
For Respondents : No appearance for R1
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C.M.A.(MD) No.214 of 2011
JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
This civil miscellaneous appeal is filed by the wife being aggrieved by
the decree of divorce granted by the Family Court, Madurai, dated 06.12.2010
in I.D.O.P.No.34 of 2003.
2. It is unfortunate that the civil miscellaneous appeal is pending
before this Court, without any adjudication, for the past ten years. When the
matter came up for final hearing before this Court on 24.11.2021, the learned
counsel for the appellant sought time and there was no representation for the
respondents and therefore, the matter was directed to be listed today. Even
today, when the matter is taken up for hearing, the learned counsel for the
appellant is not ready to get along with the case and sought further
adjournment, for which this Court is not inclined for the simple reason that a
case of matrimonial dispute challenging the order of dissolution of marriage
passed by the Family Court cannot be kept pending for ten years without any
adjudication and this Court feels that it has moral and legal responsibility to
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C.M.A.(MD) No.214 of 2011
dispose of cases of this nature within a reasonable time and cannot keep on
granting adjournments repeatedly for adjudicating the matter. Hence, the
Court has gone through the papers and passes the following orders on merits.
3. The appellant is the wife and the first respondent is the husband.
They are Christians. Their marriage was solemnized on 28.05.1990 at Patrick
Church at Tuticorin as per Christian customs and practice. They both started
the marital life at Door No.11, Sangeeta Vinayagar Kovil Street, Madurai, along
with the parents of the first respondent (husband). About a year after, they
shifted their residence to the State Bank Colony bearing Door No.56, Plot No.
25-26, Ponmeni Jainagar, Madurai. Through the wedlock, a male child was
born to them on 02.02.2000. It is alleged by the first respondent that the
appellant (wife) never used to do the household duties and was arrogant,
disrespecting him and his family members and indulged in quarrel. When she
was asked to cook food, she threatened him that she will mix poison in the
food and give it to him. Further, there are other allegations made by the first
respondent (husband) against the appellant (wife) in the divorce petition, like,
she is a spendthrift, not interested in leading the family life, but only wanted
to lead extravagant and lavish life and spending all his income, besides
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C.M.A.(MD) No.214 of 2011
suspecting his fidelity also. Above all, allegation of adultery has also been
made in the petition.
4. All these allegations were denied by the appellant herein.
5. To prove the case of cruelty and adultery, the husband examined
himself as P.W.1 and one Mari as P.W.2 and 17 documents were marked on
his side. In defence, the wife examined herself as R.W.1 and one Christopher
as R.W.2 and four documents were marked on her side.
6. The Trial Court had made an incised scrutiny of the evidence
placed before it and penned down a lengthy Judgment running to 51 pages,
wherein, the Trial Judge has framed the following points for consideration:
“1. Whether the petitioner is entitled to divorce on the ground
of Cruelty U/s.10(1)(x) of the Divorce Act, 1869 as
alleged in the petition?
2. Whether the petitioner is entitled to divorce on the ground
of Adultery U/s.10(1)(i) of the Divorce Act, 1869 as
alleged in the petition?
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C.M.A.(MD) No.214 of 2011
3. Whether the marriage is deserved to be dissolved?
4. To what relief the petitioner entitled?”
7. For the above points, the learned Trial Judge has answered as
follows:
“Point No.1 : Yes, the petitioner is entitled for divorce on the
ground of Cruelty U/s.10(1) of the Divorce Act,
1869 as alleged in the petition.
Point No.2 : Yes, the petitioner is entitled for divorce on the
ground of Adultery U/s.10(1)(i) of the Divorce
Act, 1869 as alleged in the petition.
Point No.3 : Yes, the marriage is deserved to be dissolved.
Point No.4 : In the result, the petition is allowed and the
petitioner is entitled to a decree of divorce on
the ground of Cruelty U/s.10(1)(x) and
Adultery U/s.10(1)(i) of the Divorce Act, 1869
and the Marriage between the petitioner and
the 1st respondent held on 28.05.1990 is
hereby dissolved. No costs.”
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C.M.A.(MD) No.214 of 2011
8. The appellant herein, who is the wife, has contended in this
appeal that the Trial Court has misconstrued the documentary evidence
Exs.R1 and R2 and failed to consider the inconsistent statement made by
P.Ws.1 and 2. The finding of the Trial Court that the conduct of the appellant
has caused cruelty to the first respondent is without any substantive evidence.
It is specifically contended in the grounds of appeal that the first respondent
married one Karmela Rani on 30.08.2003 and only thereafter, the first
respondent wanted to throw out the appellant from the matrimonial home
based on the false and defamatory allegations of cruelty coupled with adultery.
9. Relying upon Ex.R1 – Gift Deed, it is contended by the appellant
(wife) that the first respondent (husband) has executed Gift Deed dated
04.09.2003 in favour of Karmela Rani citing her as his wife, which will prove
that the first respondent has taken the said Karmela Rani as his wife when the
marriage between the appellant and the first respondent was in subsistence.
Hence, the conclusion of the Trial Court that it was the appellant (wife), who
committed adultery and cruelty to the first respondent (husband) is unfound
and contrary to the fact, which is other way round. It is also contended that
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C.M.A.(MD) No.214 of 2011
the criminal case initiated by the appellant (wife) in connection with the
bigamous marriage of the first respondent with Karmela Rani, though
dismissed as not proved, it cannot be totally disbelieved for considering the
defence of the appellant (wife).
10. The short points involved in this case for consideration are as
follows:
(i) Whether there was any proven cruelty caused by the
appellant (wife) to the first respondent (husband)?
and
(ii) Whether the contra allegations made by the
appellant (wife) against the first respondent
(husband) are proved with adequate evidence?
11. The ocular evidence on either side is adduced by the parties
themselves and the persons interested in their welfare. P.W.2 – Mari is the
friend of the first respondent (husband). He has deposed about his witnessing
of the appellant in a compromise position with a man, when he visited the first
respondent's house on 30.08.2003 to collect his commission amount in the
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C.M.A.(MD) No.214 of 2011
finance business and he has also spoken about the elopement of the appellant
(wife) with one Auto driver by name Edison on 05.09.2003. To cock-up this
piece of evidence, instead of impeaching the veracity of the evidence of P.W.2,
the appellant (wife) has marked Ex.R1 – copy of the Gift Settlement Deed,
dated 04.09.2003, alleging that the first respondent (husband) has married
one Karmela Rani from Kerala on 30.08.2003 and executed a registered Gift
Settlement Deed, dated 04.09.2003, in her favour, which was the immediate
cause for driving out her from the matrimonial home. In this regard, the Trial
Court has taken note of the fact that the appellant (wife) has initiated criminal
proceedings against the first respondent (husband) and his family members as
well as the Karmela Rani in C.C.No.135 of 2008, under Sections 498(A), 406,
494 read with 109 I.P.C., on the file of the learned Judicial Magistrate No.I,
Madurai and the said case was tried and found to be false. The first
respondent and his family members were acquitted by the Magistrate Court.
The Trial Court has also taken note of the other criminal complaint filed by the
appellant (wife) against the first respondent and nine others for the offence
under Sections 417, 419, 420, 468, 471 read with 120(b) I.P.C. The first
information report of the said case is marked as Ex.P16. Taking note of all
these conducts of the appellant (wife), the Trial Court has rightly pointed out
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C.M.A.(MD) No.214 of 2011
that if really the appellant (wife) was serious about living with her husband
(first respondent) and her son peacefully, she should have at least taken some
steps to obtain the custody of the minor boy. This conduct of the appellant
(wife) is the clear indicative of her character and she has not behaved well as a
responsible mother.
12. Furthermore, the contentions of the appellant (wife) that Kamela
Rani is the second wife of the first respondent (husband) and the purchase of
properties alleged to have been made by her father in the name of the first
respondent (husband) have not at all been established. That apart, with
regard to the cruelty not only on the first respondent (husband), but also on
the minor boy is concerned, the Trial Court has rightly held that the minor boy
is living with his father (first respondent) and the appellant being a mother has
not taken any steps to take custody of the child.
13. On going through the material evidence placed before the Trial
Court and the reasonings given by the Trial Court for allowing the divorce
petition, this Court does not find any valid ground to interfere with the well
considered Judgment of the Trial Court dissolving the marriage held between
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C.M.A.(MD) No.214 of 2011
the appellant and the first respondent herein and therefore, the civil
miscellaneous appeal is liable to be dismissed.
14. In the result, the civil miscellaneous appeal is dismissed and the
Judgment and Decree dated 06.12.2010, passed in I.D.O.P.No.34 of 2003, on
the file of the Family Court, Madurai, are confirmed. No costs.
[S.V.N., J.] [G.J., J.]
01.12.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the
Judgment may be utilized for official
purposes, but, ensuring that the copy of
the Judgment that is presented is the
correct copy, shall be the responsibility of
the advocate / litigant concerned.
krk
To:
1.The Judge,
Family Court,
Madurai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD) No.214 of 2011
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
krk
C.M.A.(MD) No.214 of 2011
01.12.2021
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