Madras High Court
G.Kannan vs R.Anitha on 8 December, 2021
C.M.A.(MD) No.273 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD) No.273 of 2017
G.Kannan ... Appellant
-vs-
R.Anitha ... Respondent
Civil Miscellaneous Appeal filed under Section 19(1) of the Family
Courts Act, 1984, praying to set aside the fair and decreetal order dated
28.04.2016, made in H.M.O.P.No.696 of 2014, on the file of the Family Court,
Madurai.
For Appellant : Mr.M.Ajmal Khan, Senior Counsel
for Mr.Sulthan Basha
For Respondent : Mr.K.Balasundharam
JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
This civil miscellaneous appeal is preferred by the husband being
aggrieved by the dismissal of his petition for divorce.
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C.M.A.(MD) No.273 of 2017
2. For the sake of convenience, the husband and wife are referred to
as “the appellant” and “the respondent” respectively.
3. The facts of the case are that:
3.1. On 01.06.2005, the appellant married the
respondent, who is none other than his sister's daughter. It is
the case of the appellant that after the marriage, they both
lived together and begotten one female and one male child.
However, due to the conduct of the respondent, there was
disharmony among them. The respondent left the
matrimonial home along with the jewels and documents kept
in his house. It is specifically alleged by the appellant that the
respondent used to talk with her friends, particularly male
friends, over phone and used to harass him mentally and
physically. The appellant being a Police Constable, complaints
were given against him by the respondent to the higher
officials alleging ill-treatment, harassment and dowry demand,
which put him in peril at his work place. In spite of the
Panchayat held in the presence of the elders, the drift between
the spouse got widened and therefore, they both decided to
dissolve the marriage by consent and filed H.M.O.P.No.220 of
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C.M.A.(MD) No.273 of 2017
2014. It is alleged by the appellant that the respondent, on
receiving Rs.5,00,000/- as permanent alimony for herself and
two children, signed the consent petition. But, for the reasons
best known, she withdrew her consent leading to dismissal of
the mutual divorce petition. Therefore, the petition for divorce
was filed alleging that the respondent failed to discharge her
duties as a wife and voluntarily deserted him for more than
three years and by her conduct caused cruelty. The petition
was filed under Section 13(1)(i-a) & (i-b) of the Hindu Marriage
Act, 1955 praying for dissolution of the marriage on the
ground of cruelty and desertion.
3.2. The said divorce petition was vehemently opposed by
the respondent by filing a counter, wherein a specific
allegation was made against the appellant that he had
developed illicit intimacy, when it was objected to by her, she
was put to torture and ill-treatment alleging that there are
other women ready to marry him with dowry. The appellant
forced the respondent to leave the matrimonial home with her
children, which forced her to file a maintenance petition before
the Mahila Court.
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C.M.A.(MD) No.273 of 2017
4. Before the Trial Court, the appellant was examined as P.W.1 and
his mother was examined as P.W.2 and 18 documents were marked on his
support. On behalf of the respondent, she was examined as R.W.1 and her
mother was examined as R.W.2 and 12 documents were marked on her
support.
5. Before adverting to the merits of the evidence adduced by the
parties, it is to be noted that the respondent is the sister's daughter of the
appellant. Thus, P.W.2 is the maternal grandmother of the respondent. R.W.
2 is the sister of the appellant. In the light of the close relationship between
the witnesses and the other documentary evidence, the Family Court
concluded that the appellant failed to establish that the respondent harassed
him by giving false complaints and caused cruelty. He also failed to prove the
payment of Rs.5,00,000/- as permanent alimony. Regarding desertion, taking
note of the plea raised by the respondent that she always wanted to live with
her husband along with the children, it was the appellant, who voluntarily
neglected her throwing frivolous allegations, the Trial Court dismissed the
divorce petition on 28.04.2016. It is to be noted that this civil miscellaneous
appeal filed by the appellant challenging the dismissal of the divorce petition is
pending for five years since then.
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C.M.A.(MD) No.273 of 2017
6. After hearing the submissions made by the learned counsel on
either side, this Court, in order to ascertain as to whether really there is any
possibility for reunion, requested the parties to appear before this Court in
person. Accordingly, the parties have appeared before this Court in person.
While we interacting with them, they made allegations and counter allegations
against each other. For every documents filed in the proceedings, the other
side has some explanation / reasons for execution of the same. But, the fact
remains that in spite of several attempts made to compromise, the respondent
is not inclined to withdraw her proceedings whatever she has initiated against
the appellant, but she wants to live with the appellant. The appellant is ready
to forego everything, but not willing to join the respondent.
7. It is pertinent to note that the appellant is working in the
Uniformed Services and any complaint made against him to the higher
officials, it will have a serious impact in his service. It is the contention of the
appellant that right from the beginning, at least 50 complaints were given
against him by the respondent with frivolous allegations and due to which, he
was put to mental agony not only in the home, but also in the work place.
Though the allegations were denied, the copy of the complaints dated
30.10.2014, 02.05.2018 and 10.05.2018 addressed to the Chief Minister;
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C.M.A.(MD) No.273 of 2017
Commissioner, National Commission for Women; Commissioner, Human
Rights Commission; Commissioner, State Women Commission; District
Collector, Madurai; Superintendent of Police, Madurai and Inspector of Police,
Alanganallur Police Station, all would clearly show that the respondent is
more interested in making complaints against the appellant even during the
period of separation as well as when this appeal is pending.
8. Being a matrimonial dispute, the Court has to see the subsequent
conduct of the respondent. For the past five years, after the dismissal of
divorce petition, there is no improvement in their relationship.
9. In such circumstances, after interacting with the parties, this
Court is of the view that the marriage has reached the point of irretrievable
brake down due to the prolonged separation and mutual mistrust. In the
interest of the children as well as the spouse, the marital bond has to be
severed so that they can choose their own life as per their wish.
10. When we enquired the parties, the appellant submitted that his
father bequeathed his self-acquired property in the name of the respondent.
He further submitted that children shall be with the respondent and he will
meet out the expenses for them. Even though the custody being with the
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C.M.A.(MD) No.273 of 2017
mother, as a father, he must have the visitation right and to take the children
with him during holidays.
11. Though the visitation right have to be decided by the appropriate
forum, in order to prevent the mental agony that may be caused to the
children, as a temporary measure, till the guardianship original petition is
filed, the children be with the mother and during weekends, excluding
examination time, it is open to the appellant to visit the children and the
respondent should not prevent the appellant visiting the children.
12. At this juncture, the learned counsel for the respondent
submitted that the Court ordered Rs.12,000/- per month as maintenance to
the respondent, whereas the appellant is paying only Rs.8,000/- per month. If
there is any grievance regarding payment of maintenance, it is always open to
the respondent to approach the appropriate forum and recover the
maintenance arrears from the appellant.
13. The respondent shall furnish her savings bank account number
to the appellant and the appellant shall transfer the maintenance amount to
her bank account.
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C.M.A.(MD) No.273 of 2017
14. In the maintenance petition, a sum of Rs.12,000/- was directed
to be paid by the appellant to the respondent. Since the said amount has not
been paid, attachment was ordered and a sum of Rs.8,000/- has been debited
from his account every month and remitted to the respondent. The appellant
would submit that he will remit Rs.12,000/- every month on his own to the
account of the respondent without fail. The arrears of Rs.4,000/- payable for
the period of 24 months will be paid within a period of three months from the
date of receipt of a copy of this Judgment.
15. It is needless to mention that the amount agreed to be paid by
the appellant to the respondent is not a final one and it is open to the parties
to seek for modification before the appropriate forum, if so advised.
16. Accordingly,
➢ the civil miscellaneous appeal is allowed;
➢ the fair and decreetal orders dated 28.04.2016, made in
H.M.O.P.No.696 of 2014, on the file of the Family Court,
Madurai, are set aside;
➢ the marriage held between the appellant and the respondent is
hereby dissolved;
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C.M.A.(MD) No.273 of 2017
➢ as interim measure, regarding maintenance and visitation rights,
the parties shall comply with the above directions till any
modification or alteration by the competent Court;
➢ No costs.
[S.V.N., J.] [G.J., J.]
08.12.2021
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.273 of 2017
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
krk
C.M.A.(MD) No.273 of 2017
08.12.2021
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