Madras High Court
Kala vs E.N.Ramesh on 8 February, 2021
C.M.S.A.No.16 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.16 of 2013
and
M.P.No. 1 of 2013
Kala ..Appellant
Vs.
E.N.Ramesh ..Respondent
Prayer : Civil Miscellaneous Second Appeal filed under Section 28 of
Hindu Marriage Act read with Section 100 of C.P.C., aggrieved by the
Judgment and Decree dated 11.09.2012 made in C.M.A.No.15 of 2011
on the file of the Principal District Judge, Krishnagiri, reversing the
Judgment and Decree dated 21.02.2011 made in H.M.O.P.No.27 of 2005
on the file of the Principal District Subordinate Court, Krishnagiri.
For Appellant : Mr.M.Sriram
For Respondent : Mr.M.Hariharan
for Mr.N.E.A.Dinesh
1/11
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C.M.S.A.No.16 of 2013
JUDGMENT
The judgment and decree dated 11.09.2012 passed in
C.M.A.No.15 of 2011 reversing the judgment and decree dated
21.02.2011 passed in H.M.O.P.No.27 of 2005 is under challenge in the
present Civil Miscellaneous Second Appeal.
2.The substantial questions of law mainly raised in the appeal in
hand are as under:
“a) Whether the petition for dissolution of marriage
filed by the respondent can be entertained, when the
adulterer is not impleaded as a party in spite of the fact that
the allegation of adultery is taken as a ground for divorce.
b) Whether the first Appellant Court is right in
adjudicating the grounds relating to adultery without
impleading the adulterer as a party or examining adulterer
for the purpose of culling out the truth or establishing the
facts.”
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C.M.S.A.No.16 of 2013
3.The marriage between the appellant and the respondent was
solemnized on 26.02.2001 as per the Hindu Rights and Customs. Soon
after the marriage, the spouses started living happily and they were
living in Army Head Quarters at Thiruvananthapuram. On 16.05.2003, a
female child born from and out of the wedlock at Thiruvananthapuram,
and till November 2003, the appellant/wife was living with the
respondent/ husband at Army Head Quarters at Thiruvananthapuram. On
23.04.2005, the respondent husband filed a petition for dissolution of
marriage on the ground of cruelty and adultery before the Sub-Court,
Krishnagiri. The petition for divorce was dismissed by the Sub-Court,
Krishnagiri on 21.02.2011. Challenging the said judgment, the husband
filed an appeal in C.M.A.No.15 of 2011 before the Principal District
Judge, Krishnagiri. The said appeal was allowed in favour of the
husband on 11.09.2012. Challenging the said judgment and decree the
appellant/wife preferred the present Civil Miscellaneous Second Appeal.
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C.M.S.A.No.16 of 2013
4.Based on the facts in nutshell narrated above, the question arises
whether the first Appellate Court right in granting dissolution of
marriage, mainly on the ground of adultery in the absence of impleading
the adulterer as a party in the HMOP. It is an admitted fact that adulterer
has not been impleaded as a party respondent in the HMOP. Even at the
appeal stage, the adulterer has not been impleaded. The Trial Court
dismissed the petition for divorce mainly on the ground that adultery has
not been established, so also on the ground of adultery. The first
Appellate Court in its finding held that there is possibility of adultery.
The exact finding made by the first Appellate Court reads as under:
“vjph;kDjhuiu v/rh/M/1 Mf tprhuid bra;j nghJ kDjhuh;
jug;gpy; FWf;F tprhuiz bra;jnghJ fPH;fz;lthW Twpa[s;shh;/
“ehDk; vdJ fztUk; 2003?Mk; Mz;oypUe;J
gphpe;J thH;fpnwhk; vd;why; rhpjhd;/ v';fs; FLk;gj;jpw;Fk;
kDjhuh; FLk;gj;jpw;Fk; fle;j 7 Mz;Lfshf ngr;R
thh;j;ij ,y;iy vd;why; rhpjhd;”
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C.M.S.A.No.16 of 2013
vd;W Twpa[s;shh;/ mijj;jtpu fPH;fz;lthWk; Twpa[s;shh;/
“ehd; uhQqt mjpfhhpfSf;F gy foj';fs;
mDg;gpndd; vd;why; rhpay;y”
vd;W Twpa[s;shh;/ Mdhy; vjph;kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;Ls;s
vjpUiuapy; gf;fk;?2 ghuh 5y; fPH;fz;lthW Twpa[s;shh;/
'she had written several letters to the
petitioner to arrange for army family quarters
to may at and to take her there and she had
also written to the army authorities about it
and requested for providing army family
quarters to enable her to go and live with the
petitioner where he was serving'
vd;W Fwpg;gplg;gl;oUf;fpwJ/ Mjyhy; vjpUiuapy; Fwpg;gpl;Ls;s
r';fjpfSf;F khwhf v/rh/1 FWf;F tprhuizapy; TwpapUg;gij itj;Jg;
ghh;f;Fk;nghJ Kd;Df;Fg;gpd; Kuzhd rhl;rpj;ij v/rh/1 mspj;Js;shh;
vd;gJ bjspthf mwpa KofpwJ/ mJkl;Lky;yhky; vjph;kDjhuUf;F
kDjhuUld; nrh;e;J thH tpUg;gk; ,y;iy vd;gij vjph;kDjhuiu
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C.M.S.A.No.16 of 2013
v/rh/M/1 Mf tprhuiz bra;j nghJ FWf;F tprhuiz bra;jjpypUe;J
bjspthf mwpa KofpwJ/ vt;thbwdpy; v/rh/1 FWf;F tprhuizapy;
fPH;f;fz;lthW Twpa[s;shh;/
“2003?ypUe;J ,d;iwa njjptiu eh';fs;
nrh;e;J thHtpy;iy vd;W brhd;dhy; rhpjhd;/ eh';fs;
nrh;e;J thH;tjw;F rhj;jpak; ,y;iy vd;W brhd;dhy;
rhpjhd;/ vd; fzth; vd;id xJf;fp itj;jjw;F
fhuzk; ehd; re;jpud; vd;gtUld; fs;sj; bjhlh;g[
itj;jpUg;gjhy;jhd; vd;id xJf;fp itj;jhuh vd;W
brhd;dhy; vdf;Fj; bjhpahJ”
vd;W Twpa[s;shh;/ Mjyhy; v/rh/1 I FWf;F tprhuid bra;jij itj;J
ghh;f;Fk;nghJ re;jpud; vd;gtUld; fs;sj;bjhlh;g[ itj;jpUg;gJ rk;ge;jkhf
kDjhuh; vjph;kDjhuiu xJf;fp itj;jpUf;fpwhh; vd;gJ Fwpj;J bjhpahJ
vd;W TwpapUg;gjpypUe;J fs;sj;bjhlh;g[ ,y;yhky; mt;thW
brhy;ypapUg;gjw;F tha;g;g[fs; ,y;iy/ vt;thbwdpy; vjphpkDjhuiu
kDjhuh; jug;gpy; FWf;F tprhuiz bra;j nghJ fs;sj;bjhlh;g[
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C.M.S.A.No.16 of 2013
rk;ge;jkhf nfl;l nfs;tpf;F kWj;jpUf;F ntz;Lnk jtpu bjhpahJ vd;W
brhy;ypapUg;gij itj;Jg;nghh;f;Fk;nghJ kWg;gjw;F kdk; ,y;yhj
fhuzj;jhy; jhd; bjhpahJ vd;W gjpy; mspj;Js;shh; vd;gJ bjspthf
mwpa KofpwJ/ mJ kl;Lky;yhky; vjph;kDjhunu kDjhuUld; nrh;e;J
thH rhj;jpaf; TWfs; ,y;iy vd;gij xg;g[f; bfhz;Ls;shh;/ Mjyhy;
9 tUl';fSf;F nkyhft[k; ,UtUk; gphpe;J thH;e;J tUtjhy; ,dp
nrh;e;J thH;tjw;F tha;g;g[fs; ,y;iy vd;gij bjspthf mwpa KofpwJ/
5.The above findings of the first Appellate Court reveals that the
ground of adultery was considered by the Appellate Court based on
presumptions and assumptions and, more specifically, without affording
opportunity to the parties as well as to the adulterer against whom the
finding are given.
6.In any angle such findings are in violation of principles of
natural justice. If an allegation of adulterer is raised by the husband or
the wife, necessarily the adulterer must be impleaded as a party and
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C.M.S.A.No.16 of 2013
parties must be given opportunity to examine and cross-examine, so as
to arrive a decision.
7.Contrarily, the respondent/husband raised an allegation of
adultery against a particular person. When a person is identified then
such a person must be impleaded as a necessary party. In the absence of
any such person, there must be any acceptable evidence atleast in the
findings. Therefore, the first Appellate Court is wrong in arriving a
conclusion based on certain presumptions and assumptions. It is very
dangerous to arrive at such a decision in matrimonial cases. It will attach
a stigma on either of the spouse. When the ground of adultery is taken
on either of the spouse, then it has been a pale of doubt and necessarily
the adulterer must be impleaded as a party and must be given an
opportunity subject to examination and cross-examination by the
respective parties.
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C.M.S.A.No.16 of 2013
8.This being the basic principles to be followed, this Court is of
the considered opinion that the first Appellate Court has committed an
error apparent in arriving a conclusion regarding the ground of adulterer
in the presumptions and assumptions in the absence of adulterer in the
matrimonial petition itself. Thus, the first Appellate Court missed the
basic principles and allowed the appeal filed by the respondent.
9.In view of the fact that the dissolution of marriage was granted
mainly on the ground of adultery, the same would amount to a stigma on
the wife and under these circumstances, the separation of matrimonial
home would not be a ground to grant divorce at this point of time as the
finding of the first Appellate Court is not only perverse but also
affecting the reputation, image of the wife.
10.Under these circumstances, the judgment and decree dated
11.09.2012 passed in C.M.A.No.15 of 2011 reversing the judgment and
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C.M.S.A.No.16 of 2013
decree dated 21.02.2011 passed in H.M.O.P.No.27 of 2005 is set aside.
Consequently, C.M.S.A.No 16 of 2013 stands allowed. No costs.
Connected miscellaneous petition is closed.
08.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
1.The Principal District Judge, Krishnagiri.
2.The Principal District Subordinate Court, Krishnagiri.
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C.M.S.A.No.16 of 2013
S.M.SUBRAMANIAM, J.
Pns
C.M.S.A.No.16 of 2013
08.02.2021
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