Madras High Court

Suresh vs Neela on 9 February, 2021

                                                                              C.M.S.A.No.30 of 2018

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 09.02.2021

                                                      CORAM

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

                                              C.M.S.A.No.30 of 2018

                      Suresh
                                                                                ...Appellant
                                                        Vs.

                      Neela
                                                                                ... Respondent

                      Prayer: Civil Miscellaneous Second Appeal filed under Section 13(1) (1-
                      a) of Hindu Marriage Act r/w. Section 100 of C.P.C., against the
                      judgment and decree dated 11.01.2018 passed in C.M.A.No.1 of 2013 on
                      the file of the District Judge, Nagapattinam, confirming the judgment and
                      decree dated 17.11.2012 passed in H.M.O.P.No.48 of 2009 on the file of
                      the Subordinate Judge, Nagapattinam.



                                  For Appellant      : Mr.R.Kannan

                                  For Respondent     : Ms.H.Kavitha for
                                                       Mr.S.Sounthar




                      1/11
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                                                                                C.M.S.A.No.30 of 2018

                                                  JUDGMENT

The judgment and decree dated 11.01.2018 passed in C.M.A.No.1

of 2013, confirming the judgment and decree dated 17.11.2012 passed in

H.M.O.P.No.48 of 2009, is under challenge in the present civil

miscellaneous second appeal.

2. The substantial questions of law raised in the appeal on hand

reads as under:

a. Whether the finding of lower Appellate Court is

correct in dismissing the petition for divorce that the

petitioner having lived in extra marital life as alleged by the

respondent is not entitled for divorce from the respondent

when she did not file any petition for restitution of conjugal

right under the provisions of Hindu Marriage Act?

b. Whether the reasons of the lower Appellate Court

in dismissing the appeal that the petitioner has himself

admitted in para 4 of his petition that he had lived with

another woman, kalaiselvi outside of marital house is

correct?

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c. Whether the Courts below are correct in dismissing

the petition for divorce without seeing the possibility of

reunion of the petitioner with respondent after having lived

separately for more than 9 years which would be

preponderance probability of irretrievable break down of

marriage between the petitioner and the respondent?

d. Whether the Courts below are correct in dismissing

the petition for divorce on the presumption that the

petitioner has lived extra marital life with another woman

kalaiselvi only on the pleading of counter statement of the

respondent which is not corroborated by any other

witnesses?

3. Perusal of the above questions of law raised, reveals that the said

questions may not be construed as a substantial questions of law as

mostly relatable to the facts and circumstances which were elaborately

adjudicated both by the Trial Court and the first Appellate Court. The

facts adjudicated elaborately cannot be re-adjudicated in the second

appeal in the absence of any substantial question of law with reference to

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Section 100 of C.P.C.

4. The facts in nutshell reveals that the appellant husband filed a

petition under the Hindu Marriage Act for dissolution of marriage. The

marriage between the appellant and respondent was solemnized on

20.10.1997 as per Hindu Rites and Customs. On account of

misunderstanding, the parties raised allegations at each other which

resulted in filing of the petition for dissolution of marriage by the

husband. The case was contested before the Trial Court and the Trial

Court adjudicated the issues with reference to the documents and

evidences produced by the parties. The Trial Court in its considered

judgment, made a finding in paragraph Nos.11 & 12 which reads as

under:

“11. The petitioner has also admitted that on many occasions the Trade Union President Mr.Kuppusamy has taken steps to compromise the petitioner and the respondent when they quarreled with each other. The petitioner has also affirmatively stated that the respondent and the mother of the petitioner are residing in the same house along with the children of the

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petitioner. He has stated as follows:

"jw;nghJ vjph;kDjhunuhLjhd; vd; mk;kh xnu tPl;oy; ,Uf;fpwhh; vd;W brhd;dhy; Mkhk;/ Mdhy; vd; mk;kh me;j tPl;od; bfhy;iy g[wj;jpy; jdpahf ,Uf;fpwhh;. "

PW.2 has also admitted the same fact during her cross examination. The conduct of the petitioner has played a vital role in deciding the petition. He himself has admitted that he is residing in a separate house without mentioning his present address and he has also admitted that he had voluntarily left the matrimonial home. The petitioner himself has admitted during his cross examination that he is residing separately from his family for the past more than two years and he has not seen his children also. He has narrated the same in his evidence as follows:

" ehd; FHe;ijfis filrpahf ghh;j;J 2 tUl';fSf;F nkyhfpwJ/ vd; igad;fs; gof;Fk; tptuk; bjhpa[k;/ vd; FHe;ijfSf;F ehd; Jzpkzp vLj;Jf; bfhLf;ftpy;iy/ gog;g[ brytpw;Fk; gzk; bfhLf;ftpy;iy vd;W brhd;dhy; rhl;rp FHe;ijfs; muR gs;spapy; gog;gjhy; mjpfk; bryt[ ,y;iy vd;W TWfpwhh;/"

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The petitioner being à father of three children , he has no interest in seeing his children for more than two years. How a dutiful father could live without seeing his children for more than two years has not at all been explained by the petitioner. When the petitioner has reluctant to see his young children for more than two years and has not taken due care and caution for their studies and their day to day life, that would show the stone heart of the petitioner. The above evidence would clearly shows that the petitioner is not having any interest in looking after his family especially his children and the same would probablise the case of the respondent. It is unbelievable to accept the evidence of petitioner as well as his mother that the respondent has assaulted the petitioner as well as his mother and had caused fracture on the left hand of the petitioner's mother, since no documentary evidence has been produced to prove the same and since the mother of the petitioner is all along the way living with the petitioner and her children in the same house. It is also unbelievable one that the mother of the petitioner as well as her mother are residing in the bathroom situated in the backyard of the house The respondent has clarified

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the same by stating that the mother of the petitioner and his grandmother are residing in the house situated in the backyard which was previously rented out to somebody.

12. When the petitioner himself has admitted that he is having illicit intimacy with another woman during the subsistence of his marriage with the respondent even after having three grown up children, no dutiful wife would have tolerated the high handed, unlawful, un- tolerable and sadist act of the petitioner. Mere bald allegation made against the respondent would not itself sufficient to prove the case of the petitioner. On the other hand the respondent has proved her case on the basis of the admission given by the petitioner and probablise her case through other evidence of PW.I and PW.2. Considering the above stated circumstances this court finds that the petitioner has miserably failed to prove his case and consequently this petition is to be dismissed and this court decided the point accordingly.”

5. The above findings of the Trial Court reveals that the appellant

husband could not able to establish the allegations set out in his petition

seeking dissolution of marriage. Challenging the Trial Court's judgment,

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the appellant preferred C.M.A.No.1 of 2013. The first Appellate Court

also considered the documents and evidences as well as the findings of

the Trial Court. In paragraph No.10 of the judgment, the first Appellate

Court made a finding which is extracted hereunder:

“10. cz;ikapnyna vjph;kDjhuh;-kidtp kDjhuiuf; bfhLikg; gLj;jpapUe;jhy; mth;fs; ,UtUf;Fk; K:d;W FHe;ijfs; gpwe;jpUf;Fkh vd;gJ nfs;tpf;Fwp/ K:d;W FHe;ijfs; gpwe;Js;sepiyapy; kDjhuh; ntW bgz; kPJ nkhfk; bfhz;L kidtpia Fiw Twtij Vw;f KoahJ/ tHf;fpw;fhf vjph;kDjhuh; jd;idf; bfhLikg;gLj;jpajhf kDjhuh; Twp tUfpwhh;/ vdnt. ,e;j re;jh;g;g NH;epiyfis ehfg;gl;odk; rhh;g[ ePjpgjp mth;fs; jd;Dila cj;jutpy; M';fh';nf nkw;nfhs;fs; fhl;o ed;F ghprPyid bra;J kDjhuhpd; tpthfuj;J nfhUk; kDitj; js;Sgo bra;Js;shh;/ rhh;g[ ePjpgjp mth;fs; gpwg;gpj;j me;j cj;jutpy; rl;lg;gpiHnah my;yJ fUj;Jg; gpiHnah VJk; ,Ug;gjhf vdf;Fj; bjhpatpy;iy/ vdnt me;j cj;jutpy; jiyaPL bra;a tpUk;gtpy;iy/ khwhf. ehfg;gl;odk; rhh;g[ ePjpgjp mth;fs; gpwg;gpj;j cj;juit cWjp bra;J cj;jutpLtJ ePjpapd; eyDf;F cfe;jjhf ,Uf;Fk; vd;W ehd;

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fUJfpnwd;/ me;j tifapy; ,e;j chpikapay; gy;tif nky;KiwaPL js;Sgo bra;ag;gl ntz;oaJ vd;Wk; Kot[ bra;fpnwd;/””

6. Perusal of the above findings of both the Trial Court as well as

the first Appellate Court, this Court is of the considered opinion that it is

the appellant who is responsible for irretrievable break down of the

marriage and the allegations set out in the petition are not established by

the appellant. Contrarily, the appellant husband made an attempt to shift

the burden on the wife which is undoubtedly impermissible. The person

approaching the Court of law must establish his case at the first instance.

This being the basic principle, the appellant husband has not established

his case even before the Trial Court and the findings of the Trial Court as

well as the first Appellate Court are candid and convincing, this Court