Jayachandra Chowdry vs K.Sandhya
2021 Latest Caselaw 2772 Mad

                                                                            C.M.S.A.No.35 of 2012




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 05.02.2021

                                                       CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 C.M.S.A.No.35 of 2012


                     Jayachandra Chowdry
                                                                             ... Appellant
                                                          Vs.

                     K.Sandhya
                                                                             .. Respondent

                     Prayer : Civil Miscellaneous Second Appeal filed under Section 28 of
                     the Hindu Marriages Act r/w.100 C.P.C., against the judgment and
                     decree dated 27.07.2011 in C.M.A.No.14 of 2008 on the file of the Addl.
                     District Judge, Fast Track Court III, Trivellore, confirming the judgment
                     and decree dated 08.07.2005 in H.M.O.P.No.70 of 1998 on the file of the
                     Sub Judge, Trivellore.

                                      For Appellant    : Mr.R.Selvakumar

                                      For Respondent   : Refused




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https://www.mhc.tn.gov.in/judis/
                                                                                  C.M.S.A.No.35 of 2012

                                                     JUDGMENT

The judgment and decree dated 27.07.2011 in C.M.A.No.14 of

2008, confirming the judgment and decree dated 08.07.2005 in

H.M.O.P.No.70 of 1998, is under challenge in the present civil

miscellaneous second appeal.

2. The substantial question of law raised in this appeal is whether

the Courts below are right in dismissing the petition for divorce filed

under Section 13(1)(ib) when admittedly the appellant and the

respondent are living separately for more than 10 years.

3. The marriage between the petitioner and the respondent was

solemnized on 05.07.1995 as per Hindu Rites and Customs. The learned

counsel for the appellant states that the appellant and the respondent

were living hardly for eight days and thereafter, the difference of opinion

arose and they are living separately.

4. It is contended that they are living separately for about 25 years.

The H.M.O.P. was filed in the year 1998 itself. Even during the pendency

of the litigation, they had no occasion for reunion and they continued to

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live separately. When the matter came by way of an appeal before the

first Appellate Court in C.M.A.No.14 of 2008, the said grounds were

raised and the first Appellate Court also committed an error in not

considering the admitted fact regarding the desertion which is a main

ground for divorce under the provisions of the Hindu Marriage Act.

5. This Court is of the considered opinion that admittedly after one

or two weeks from the date of marriage, there was a dispute between the

spouses and they are living separately for about 25 years. When the

ground of desertion was admitted between the parties during the course

of the trial, the Courts ought to have consider the said ground for

granting divorce. The other allegations are factual in nature which

deserves no adjudication by this Court in the second appeal. As far as the

ground of desertion is concerned, it is patently not considered by both the

Courts in spite of the fact that the spouses are living separately for about

25 years.

6. This Court is of the considered opinion that when there is no

possibility of reunion for several years and the marriage became a total

failure, then, there is no point in declining the relief of divorce to either

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of the parties approaching the Court of law. In the present case, the

appellant filed H.M.O.P. in the year 1998 and the first appellate Court

decided the appeal on 27.07.2011. Even during the 13 years of litigation,

the parties were living separately. This being the factum, this Court is of

the opinion that there is no possibility for reunion at this length of time as

the appellant is also aged about 67 years. The Trial Court as well as the

first Appellate Court committed an error in not considering the ground of

desertion inspite of the fact that it was admitted by the parties during the

course of evidence.

7. Under these circumstances, the judgment and decree dated

27.07.2011 passed in C.M.A.No.14 of 2008 confirming the judgment and

decree dated 08.07.2005 passed in H.M.O.P.No.70 of 1998, is set aside

and C.M.S.A.No.35 of 2012 stands allowed. No costs.

05.02.2021 Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order gsk

To

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.35 of 2012

1.The Addl. District Judge, Fast Track Court III, Trivellore,

2.The Sub Judge, Trivellore.

S.M.SUBRAMANIAM, J.

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.35 of 2012

gsk

C.M.S.A.No.35 of 2012

05.02.2021

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