Madras High Court
S.Logannathan vs T.Thangamani on 13 December, 2021
C.M.A.No.1532 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.1532 of 2018
S.Logannathan .. Appellant
Versus
T.Thangamani .. Respondent
Prayer: Civil Miscellaneous Appeal has been filed under Section 19 of the Family Court
Act, 1984, against the fair and decreetal order dated 07.09.2016 in FCOP.No.151 of 2012 on
the file of the Family Court, Salem.
For Appellant : Mr.S.Raveekumar
For Respondent : Mr.S.Natarajan
for Mr.T.K.Saravanan
JUDGMENT
(Judgment of the Court was delivered by T.RAJA, J.)
The appellant/S.Logannathan has filed this Civil Miscellaneous Appeal challenging
the impugned fair and decreetal order passed by the Family Court, Salem, in
F.C.O.P.No.151 of 2012, dated 07.09.2016, refusing to grant the decree for dissolution of
marriage solemnized between the appellant/husband and the respondent/wife on
31.10.2008 on the ground of cruelty and desertion.
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C.M.A.No.1532 of 2018
2. When the matter was taken up on 09.12.2021, we have passed the following
order:-
“This Civil Miscellaneous Appeal has been directed against the
fair and decreetal order dated 07.09.2016 passed in FCOP.No.151 of
2012 by the learned Judge, Family Court, Salem, filed under Section
13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, by the appellant-
husband, thereby declining to grant the prayer for dissolution of the
marriage that was solemnized between the parties on 31.10.2008 on the
ground of cruelty and desertion.
2. Learned Counsel appearing for the appellant-husband placed
three fold submissions before us. Firstly, after the marriage was
solemnized between the appellant and the respondent on 31.10.2008, as
per the Hindu rites and Customs at Chinnamanoor Panchayat Union
Marriage Hall, they were finding it difficult to live together, because the
respondent-wife was having some permanent health issues, namely, she
was afflicted with back pain due to her back bone deformity and in view
of the said physical deformity on L1 and S1 Discs on her spinal chord,
she was not able to lead a normal matrimonial life. Secondly, though
they were living together only for a period of three months, during this
three months time also, her non-co-operation resulting from the L1S1
Disc problem made them not to live together. Thirdly, when the
appellant-husband filed a Divorce Petition under Sections 13(1)(i-a) and
(i-b) of the Hindu Marriage Act, 1955 before the Family Court, Salem,
till date, the respondent-wife has not come forward to file any
application under Section 9 of the Hindu Marriage Act, 1955, seeking
restitution of conjugal rights. That shows the truthfulness of the case of
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C.M.A.No.1532 of 2018
the appellant that respondent-wife is unfit for marital life. These vital
aspects have been completely overlooked and unanswered by the trial
court, he pleaded.
3. Learned Counsel for the respondent-wife also admitted that
the trial court has sent the respondent-wife to the Medical Board and the
report of the Medical Board was also examined by the trial court.
4. We have also gone through the medical report of the
respondent-wife. In this regard, it is useful to extract the relevant
portion here under:
''Chief Neurologist : At present Neurologically normal clinically
HOD Ortho : MRI shows Iystistion-L5S1 & Casual stenosis.
Patient is asymptomatic at present as she is not having back pain
& leg pain. Incidental finding. She will require decompression &
Stratistigation at a latter date if symptoms detected. She is advised
activity modification and to wear L.S.Belt for support. Patient at
present in having asymptomatic L5S.1ystistion.
Psychiatrist : Mrs.Thangamani was examined in the department
of psychiatry. Her mental status examination revealed that she does not
have any mental disorder at present.''
The above Medical Report would show that the respondent-wife
has some health issues.
5. Therefore, the learned Counsel for the appellant submitted
that the appellant is ready to pay Rs.5,00,000/- towards permanent
alimony to the respondent-wife. Anyhow, we have directed the
appellant-husband to reconsider the said amount.
6. Consequently, learned Counsel for the appellant-husband
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C.M.A.No.1532 of 2018
submitted that the appellant-husband would pay a sum of Rs.6,00,000/-
towards permanent alimony under Section 25 of the Hindu Marriage
Act, 1955. Justifying the said amount, he has also stated that the
appellant is working as a Store Keeper in Tamil Nadu Electricity Board
and drawing a monthly salary of Rs.45,000/-.
7. We also find that since the respondent-wife has contracted
the marriage, without disclosing her major health issues to the
appellant-husband, the request of the learned Counsel for the
respondent-wife for reunion cannot be considered since it is too late in
view of the Medical Report speaking clearly that she is unfit for
matrimonial life. Therefore, as agreed by the learned Counsel for the
appellant-husband, for bringing a Demand Draft for a sum of
Rs.6,00,000/- (Rupees Six Lakhs Only) drawn in favour of the
respondent-wife, Registry is directed to list the matter on 10.12.2021.”
3. After perusing the oral and documentary evidences, we have found against the
respondent/wife as she has some permanent health issues, namely, she is affected with
physical deformity on L1 and S1 Discs on her spinal chord, due to which, she is unable to
lead a normal matrimonial life. Secondly, it is also further seen from the records that
within three months of the marriage, she parted with the matrimonial life, as a result, they
have been living separately for the past 13 long years. Thirdly, to find out whether the
respondent/wife is capable of giving birth to a child as alleged by her husband, learned
Family Court referred the matter to the Medical Board of Mohan Kumaramangalam
Medical College, Salem, and after examining her, the Medical Board submitted a report
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C.M.A.No.1532 of 2018
dated 25.03.2015 and one Dr.Subramanian was examined as Court Witness (C.W-1). For
better appreciation, the report dated 25.03.2015 of the Medical Board is extracted below:-
''Chief Neurologist : At present Neurologically normal clinically
HOD Ortho : MRI shows Iystistion-L5S1 & Casual stenosis.
Patient is asymptomatic at present as she is not having back pain
& leg pain. Incidental finding. She will require decompression &
Stratistigation at a latter date if symptoms detected. She is advised
activity modification and to wear L.S.Belt for support. Patient at present
in having asymptomatic L5S.1ystistion.
Psychiatrist : Mrs.Thangamani was examined in the department
of psychiatry. Her mental status examination revealed that she does not
have any mental disorder at present.”
4. In view of her bodily infirmities, the appellant/husband has lost his youthful
marital life for the past 13 long years. Moreover, he has lost his prime age of his life only
in the court proceedings for the past 9 years. Accordingly, in our earlier order dated
09.12.2021, we have held against the respondent/wife as she has contracted the marriage
without disclosing her major health issues to the appellant/husband. However, to show
some compassion on the respondent/wife, when the matter was taken up on 09.12.2021, we
have directed the appellant/husband to pay a sum of Rs.6,00,000/- towards permanent
alimony to his wife. Learned counsel for the appellant/husband, on getting instruction
from the husband, sought time to bring Demand Draft for a sum of Rs.6,00,000/-
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C.M.A.No.1532 of 2018
5. Accordingly, today, when the matter is taken up, Mr.S.Raveekumar, learned
counsel for the appellant/husband handed over a Demand Draft drawn in the name of the
respondent/wife to the tune of Rs.6,00,000/-. But, refusing to receive the same,
Mr.S.Natarajan, learned counsel for the respondent/wife sought for pass-over of the matter
to get instruction from his client/respondent/wife.
6. In the afternoon session, after taking instruction from the respondent/wife, who is
also present in the Court, learned counsel for the respondent/wife requested us to direct
the husband to return the Cot, Bureau and one sovereign gold coin given to him at the
time of marriage. Learned counsel for the husband agreeing to return the Cot and Bureau,
stated that the husband has not received any such gold coin, however, as he has given Gold
Thali Chain to her, the same may be retained by her. The said submission is recorded and
the Cot and Bureau may be returned as agreed above.
7. Learned counsel for the respondent/wife has also agreed for Rs.6,00,000/- towards
permanent alimony and accordingly, after receiving the said DD, she stated that her name
has been wrongly mentioned in the DD as Thangamani, instead of Thangammal.
Therefore, in view of such discrepancy in the DD, learned counsel for the
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C.M.A.No.1532 of 2018
appellant/husband undertook to transfer the said sum through bank transfer to her bank
account by tomorrow itself.
8. Therefore, by recording the above said submissions of the learned counsels for the
parties and also for the reasons stated above, the impugned fair and decreetal order passed
by the Family Court is set aside and consequently, the decree for dissolution of marriage is
granted. The Civil Miscellaneous Appeal stands allowed. No Costs.
(T.R., J.) (D.B.C., J.)
13.12.2021
rkm
To
Family Court,
Salem.
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C.M.A.No.1532 of 2018
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
rkm
C.M.A.No.1532 of 2018
13.12.2021
https://www.mhc.tn.gov.in/judis
