Madras High Court
K.A.Palanisamy vs P.Thulasimani on 8 February, 2021
C.M.S.A.No.4 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.4 of 2013
K.A.Palanisamy ..Appellant
Vs.
P.Thulasimani ..Respondent
Prayer : Civil Miscellaneous Second Appeal filed under Section 28 (1)
of Hindu Marriage Act, 1955 read with Section 100 of C.P.C., against
the judgment and decree dated 29.10.2012 made in C.M.A.No.22 of
2012 on the file of the First Additional District Court, Erode reversal of
the judgment and decree dated 28.06.2010 made in H.M.O.P.No.1 of
2010 on the file of the Sub Court, Sathyamanagalam.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.I.C.Vasudevan
JUDGMENT
The judgment and decree dated 29.10.2012 passed in
C.M.A.No.22 of 2012 reversing the judgment and decree dated
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C.M.S.A.No.4 of 2013
28.06.2010 passed in H.M.O.P.No.1 of 2010 is under challenge in the
present Civil Miscellaneous Second Appeal.
2.The substantial question of law mainly raised by the appellant is
that whether the first Appellate Court is erred in law in reversing the
well considered judgment of the trial Court and whether the judgment of
the First Appellate Court is vitiated for not adverting to the reasonings
given by the trial Court while reversing the findings, in compliance with
Order 41 Rule 31 of CPC?
3.The appellant/husband filed a petition under the Hindu Marriage
Act, 1955 seeking dissolution of marriage mainly on the ground of
cruelty and desertion. The trial Court adjudicated the issues with
reference to the allegations and granted decree of divorce in favour of
the husband. The said judgment and decree was challenged by the
respondent/wife in C.M.A.No.22 of 2012. The first Appellate Court
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C.M.S.A.No.4 of 2013
reverses the judgment and dismissed the petition. Thus, the appellant is
constrained to move the present Civil Miscellaneous Second Appeal.
4.The learned counsel appearing on behalf of the appellant mainly
contended that the marriage between the appellant and the respondent
was solemnized on 28.08.1985 as per the Hindu Rights and Customs.
Two children were born from and out of the wedlock and the appellant
was working as a driver in Tamil Nadu State Transport Corporation. He
was transferred to Karumathampatti, Coimbatore District and he was
unable to travel from Puliampatti to Karumathampatti daily. Thus, he
requested the respondent/wife to join the matrimonial home in a rental
house at Karumathampatti and the respondent/wife declined to accept
the proposal of the appellant/husband and was living separately. With
this allegation, the petition is filed seeking divorce on the ground of
desertion.
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C.M.S.A.No.4 of 2013
5.The learned counsel for the appellant states that the appellant
and the respondent left matrimonial home in the year 1992 and living
separately from the past about 28 years. Notice was issued, suit was
filed, HMOP was filed seeking dissolution of marriage. The
respondent/wife filed O.S.No.270 of 2004 for maintenance and the
appellant is paying maintenance. It is contended that the Trial Court is
decreed the HMOP by granting the dissolution of marriage on the
following grounds:
“(i)Respondent had refused to go and live with the
appellant in the place of his employment.
(ii)Respondent had admitted the panchayat held for
reunion in December, 1992 and she refused to live with the
appellant. The said fact has been proved through PW2.
(iii)Respondent filed O.S.No.270 of 2004 for
maintenance, but, not filed any petition for restitution of
conjugal rights.
(iv)Respondent has alleged bigamy against the
appellant without any iota of evidence.
(v)Appellant has not committed any cruelty or
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C.M.S.A.No.4 of 2013
harassment against the respondent at any point of time.
(vi)Respondent had refused cohabitation and failed to
perform her matrimonial obligations towards her husband
for more than 10 years.
(vii)Respondent has not examined her parents to
prove her case.
(viii)Thought the appellant had expressed his
willingness to live with the respondent, she had refused for
reunion.
(ix)Parties are living separately from 1992 and no
purpose could be served by keeping relationship alive.”
6.The wife preferred an appeal in C.M.A.No.22 of 2012 and the
first Appellate Court passed a judgment and decree on 29.10.2012
without assigning any reason. The learned counsel for the appellant
states the first Appellate Court committed an error in not assigning any
reason in the findings of the Trial Court and further not given any
independent finding with reference to the grounds of cruelty and
desertion, therefore, the judgment of the first Appellate Court is liable to
be scrapped.
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C.M.S.A.No.4 of 2013
7.The learned counsel appearing on behalf of the respondent
disputed the contentions raised by stating that absolutely there is no
allegation which was established. The first Appellate Court has rightly
dismissed the petition for dissolution of marriage filed by the appellant.
The appellant had not established the ground on cruelty or the desertion.
Therefore, the appeal is to be dismissed.
8.The findings of the first Appellate Court reveals that the
appellant and respondent were living together in the matrimonial home
till the year 1991 and the appellant requested the respondent/wife to join
matrimonial home in Coimbatore District. However, the respondent
refused to join in the matrimonial home and thereafter they have
separated and the first Appellate Court itself made a finding that the
evidence of the respondent itself establishes that the desertion is only on
the part of the husband and not on the part of the wife.
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C.M.S.A.No.4 of 2013
9.This Court is of the considered opinion that whether the
desertion is at the instance of the husband or at the instance of the wife,
the fact remains that the husband and wife are living separately for more
than 28 years and the desertion by anyone of the party is a ground for
dissolution of marriage under the provisions of the Hindu Marriage Act.
It is not as if the husband not deserted the wife or the wife not deserted
the husband. The desertion was accepted by the parties during the course
of the desertion. The first Appellate Court committed an error on
declining to grant decree of divorce and therefore, this Court has no
hesitation in arriving a decision that the judgment and decree passed by
the first Appellate Court is perverse as per the Hindu Marriage Act as
the desertion is wrongly interpreted. Desertion of any one of the spouse
is sufficient to grant the decree of divorce.
10.This being the principles to be followed, the judgment and
decree dated 29.10.2012 passed in C.M.A.No.22 of 2012 reversing the
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C.M.S.A.No.4 of 2013
judgment and decree dated 28.06.2010 passed in H.M.O.P.No.1 of 2010
is set aside and consequently, C.M.S.A.No.4 of 2013 stands allowed. No
costs.
08.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
1. The First Additional District Court, Erode.
2. The Sub Court, Sathyamanagalam.
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C.M.S.A.No.4 of 2013
S.M.SUBRAMANIAM, J.
Pns
C.M.S.A.No.4 of 2013
08.02.2021
https://www.mhc.tn.gov.in/judis/
