Rani vs R.Varadharajan
2021 Latest Caselaw 2886 Mad

                                                                           C.M.S.A.No.31 of 2013

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 08.02.2021

                                                       CORAM

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

                                                 C.M.S.A.No.31 of 2013

                     Rani
                                                                              ...Appellant
                                                          Vs.

                     R.Varadharajan
                                                                              ... Respondent

                     Prayer: Civil Miscellaneous Second Appeal filed under Section 28(1)
                     Hindu Marriage Act r/w. Section 100 of C.P.C., against the judgment and
                     decree dated 01.04.2013 made in C.M.A.No.21 of 2012 on the file of the
                     Principal District and Sessions Court, Namakkal, confirming the
                     judgment and decree dated 17.07.2012 made in H.M.O.P.No.73 of 2008,
                     on the file of the Sub Court, Tiruchengode.



                                      For Appellant    : Mr.N.Manokaran

                                      For Respondent   : Mr.V.S.Kesavan




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https://www.mhc.tn.gov.in/judis/
                                                                             C.M.S.A.No.31 of 2013

                                                  JUDGMENT

The judgment and decree dated 01.04.2013 made in C.M.A.No.21

of 2012, confirming the judgment and decree dated 17.07.2012 made in

H.M.O.P.No.73 of 2008, is under challenge in the present civil

miscellaneous second appeal.

2. The marriage between the appellant and the respondent was

solemnized during the year 1981. Two children born from and out of the

wedlock between the appellant and the respondent. During the year 2001,

marriage of the first daughter was solemnized. From the year 2003

onwards, the appellant and the respondent are living separately and the

daughters have filed O.S.No.1182 of 2004 before the District Munsif

Court, Tiruchengode, for partition of the properties. The second daughter

also got married in the year 2006. Thereafter, the respondent husband

issued a legal notice on 02.04.2007 (Ex.P3) to the appellant wife.

Consequently, the respondent husband filed H.M.O.P.No.73 of 2008 for

dissolution of marriage on the ground of cruelty and desertion.

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3. Based on the deposition of the husband as P.W.1 and with

reference to the documents marked in Ex P1 to P5 and relying on the

deposition of the wife who was examined as R.W.1, the Trial Court

adjudicated the issues and granted decree of divorce mainly on the

ground that the wife has removed the mangalsutra on her own during the

lifetime of her husband. The wife has given a police complaint against

the respondent as if the mangalsutra was stolen by her husband. The wife

has suggested an illicit relationship between the respondent and one

Chitra without any pleadings. Finally, the Trial Court relied on a ground

that the marriage has been irretrievably broken down and passed the

decree of divorce. Challenging the same, the appellant wife filed an

appeal in C.M.A.No.21 of 2012, before the Principal District Judge,

Namakkal and the first Appellate Court also confirmed the judgment and

decree passed by the Trial Court on 01.04.2013. Thus, the present second

appeal is filed.

4. The questions of law raised in the present second appeal are as

follows:

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a. Whether the Courts below have committed an

error in granting divorce on the ground of cruelty and

desertion by treating them as an ideal husband and ideal

wife instead of considering the social strata of the parties,

their ways of life, relationship, temperament and emotions

that they have been conditioned by their social status?

b. Whether the Courts below are right in holding

that the appellant is guilty of desertion in the absence of

any evidence to prove the factum of separation and the

intention to bring cohabitation permanently to an end, and

that the husband who was at fault cannot be allowed to

take advantage of his own wrong?

c. Whether the Courts below are right in holding

that the appellant has treated the respondent with cruelty

in the absence of any legal evidence to prove the

allegation of the cruelty committed by the appellant

/wife?

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5. The questions of law raised by the appellant are relatable to the

factual findings of the Trial Court as well as by the first Appellate Court

which deserves no further adjudication by this Court in the present civil

miscellaneous second appeal. The facts adjudicated and concluded both

by the Trial Court and the first Appellate Court need not be gone into at

the stage of second appeal and therefore, the substantial questions of law

are unacceptable and not in consonance with the principles regarding the

substantial question of law with reference to Section 100 of C.P.C. Even

factually, the appellant and the respondent are living separately for more

than 17 years. Therefore, the marriage has became irretrievably broken

down and there is no possibility of reunion or otherwise. This apart, the

respondent is aged about 64 years.

6. Under these circumstances, this Court do not find any

acceptable ground for the purpose of interfering with the concurrent

findings of the Trial Court as well as the first Appellate Court.

Consequently, the judgment and decree dated 01.04.2013 passed in

C.M.A.No.21 of 2012, confirming the judgment and decree dated

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.31 of 2013

17.07.2012 passed in H.M.O.P.No.73 of 2008, stands confirmed and

C.M.S.A.No.31 of 2013 stands dismissed. No costs.

08.02.2021 Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order gsk

To

1.The Principal District and Sessions Court, Namakkal.

2.The Sub Court, Tiruchengode.

S.M.SUBRAMANIAM, J.

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.31 of 2013

gsk

C.M.S.A.No.31 of 2013

08.02.2021

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