Madras High Court
V.Gomathi Lakshmi vs S.S.Venkatasubramanian on 9 February, 2021
C.M.S.A.Nos.30 & 31 of 2011
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.Nos.30 & 31 of 2011
V.Gomathi Lakshmi ..Appellant in both Appeals
Vs.
S.S.Venkatasubramanian ..Respondent in both Appeals
Common 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 08.03.2011 passed in
C.M.A.Nos.18 & 27 of 2007 on the file of the District Judge,
Nagapattinam reversing the order and decree of the Trial Court dated
20.11.2006 in H.M.O.P.Nos.47 of 2006 & 20 of 2005 on the file of
Principle Subordinate Judge, Mayiladurai.
For Appellant : Mr.J.R.K.Bhavanantham
For Respondent : Mrs.Ahila.R.S
for M/s.Sudha Ramalingam
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
COMMON JUDGMENT
The common judgement and decree dated 08.03.2011 passed in
C.M.A.Nos.18 and 27 of 2007 reversing the judgement and decree
passed by the Trial Court dated 20.11.2006 passed in H.M.O.P.Nos.20
of 2005 and 47 of 2006 is under challenge in the present Civil
Miscellaneous Second Appeals.
2.The appeal before this court is filed by the wife and the
marriage between the appellant and the respondent was solemnized on
06.12.2000 as per Hindu Rights and Customs. The appellant and the
respondent started their matrimonial life happily and they lived together
for about six months, thereafter they left the matrimonial life and started
living separately, on account of certain difference of opinions and
disputes. They continued to live separately for about four years and the
appellant/wife filed H.M.O.P.No.20 of 2005 for restitution of conjugal
rights. Thereafter, the respondent/husband filed H.M.O.P.No.47 of 2006
for dissolution of marriage. Both the petitions were contested by the
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
respective parties and the Trial Court adjudicated the issues with
reference to the documents and evidences filed by the parties to the
litigation.
3.The Trial Court made a categorical finding that six months after
the marriage, both the husband and wife were living happily thereafter,
there was a dispute between the spouses and as per the deposition of the
respondent/husband there was an allegation that family of the wife had
stated a false information regarding the Educational qualification of the
wife, so also the age of the wife. The Trial Court disbelieved the
statement of the husband that there was no cohabitation between the
spouses. The Trial Court arrived a finding that both the husband and
wife lived separately and thereafter, no evidence to establish that they
lived together. Disbelieving the statement of the husband that there was
no cohabitation at all between the husband and wife, the Trial Court
dismissed the petition for divorce and allowed the petition for
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
Restitution of conjugal rights.
4.Challenging the common judgement and decree of the Trial
Court, the husband preferred C.M.A.Nos.18 and 27 of 2007. The First
Appellate Court considered the issues with reference to the documents
and evidences as well as based on findings of the Trial Court. The
findings of the First Appellate Court reveals that “however the fact
remains that after six months of the marriage a dispute arose between
parties and from that day onwards there were serious
misunderstanding, as a result, the respondent/wife permanently left the
matrimonial home which fact has been clearly established in evidence”.
5.The First Appellate Court made an observation that the
contention of the husband is that during the marriage it was represented
to him that the wife was qualified in B.Sc., Degree Mathematics and
also pursuing B.B.A Degree, was found to be false. Therefore, the
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
husband was of an opinion that he was cheated by the wife and her
family members by providing false information regarding educational
qualifications of his wife.
6.With reference to the evidence, PW2 about informing real facts
to the husband clearly shows that the facts regarding educational
qualifications was suppressed at the time of the marriage. The admission
of PW2 after knowing these aspects by the husband reveals that the
parents of the wife had given false information regarding educational
qualifications as well as the correct age. In this regard, the first
Appellate Court made a finding “it is to be noted that the expectation of
the husband who is highly qualified and he wanted to help the wife by
pursuing education and also take her to some achievement in academics
cannot be faulted at all. The mutual trust originally he had at the time
of marriage has been broken by suppression by the parents.”
7.The First Appellate Court had not stopped with that point,
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
contrarily, the First Appellate Court found the opinion that mere
suppression of these facts cannot be a ground to infer the mere cruelty.
Thus, the First Appellate Court has not merely depends on the
suppression of fact by the wife and her family members with reference
to educational qualifications and age.
8.The First Appellate Court gone into the other allegations and
made an assessment that “in the marriage life what has been transpired
between the husband and wife in their relations there cannot be any
direct evidence. Thus, the same is to be inferred from the circumstances
and pleadings and evidence. The evidences of both the parties and their
pleadings plays a vital role. The fact reveals that the wife used go to her
parents house frequently and after such misunderstanding there was no
co-operation between the parties for cohabitation. These facts were
gathered by the First Appellate Court based on the pleadings and
evidences of the parties itself”. The First Appellate Court arrived a
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
finding that the husband and wife lived happily for six months and
thereafter, due to the misunderstanding that the wife went on going to
her parents house frequently, there was no occasion for cohabitation
between the parties. With regard to the restitution of conjugal rights is
also not been seriously denied by the wife. Even before leaving
matrimonial home permanently by the wife, the evidence of facts reveals
that the wife frequently left the husband on many occasions which
created a gap between the spouses and based on these factors, the
allegation regarding the non-cohabitation was also established before
the First Appellate Court.
9.Another eternal incident between the appellant and respondent
was also considered by the First Appellate Court. When the
respondent/husband refused to allow the wife to enter into his house,
they went to the office in which the husband was working and there was
a quarrel between the father of the wife and the husband and it created
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
issues between the parties. The Police complaint was also lodged and
these aspects were not in dispute. Thereafter, there was no scope for
resumption of matrimonial home and all along the appellant and
respondent are living separately for about 16 years. Under these
circumstances, the First Appellate Court arrived a finding that on the
conduct of the wife, leaving matrimonial home frequently and refusal of
cohabitation is nothing but cruelty. Those two circumstances were
considered by the First Appellate Court. Frequent absence of the wife in
a matrimonial home which resulted denial of cohabitation were
considered by the First Appellate Court for arriving a conclusion that
husband established cruelty and therefore, he is entitled for a decree of
divorce. The continuous refusal of cohabitation to the husband is also a
cruelty.
10.This Court is of the considered opinion that refusal of
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
cohabitation for a continuous period, more specifically, in the present
case for years together certainly amounts cruelty and therefore, grant of
dissolution of marriage is based on the evidence and documents
established and there is no infirmity or perversity as such.
11.The parties are present before this court while the appeal is
being heard. The attempt made by this court to conciliate also failed.
The respective learned counsels appearing for the parties also made an
attempt that also failed and both the parties are not willing for
presumption of matrimonial home. Under these circumstances, the
marriage become irretrievable breakdown and the efforts taken by the
Courts as well as the learned counsels also went in vain. Apart from this,
the finding of the First Appellate Court are candid and convincing and
this Court do not find any perversity as far as the question of law is
concerned.
12.The substantial questions of law raised are relatable to the
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
circumstances with the First Appellate Court as considered the facts and
circumstances in entirety and made a considered finding which seems to
be appropriate in the facts and circumstances of the case. This Court do
not find any sustainable substantial question of law which deserves any
further adjudication in this second appeal.
13.This being the factum, the judgement and decree dated
08.03.2011 passed in C.M.A.Nos.18 & 27 of 2007 reversing the
judgement and decree dated 20.11.2006 passed in H.M.O.P.Nos.20 of
2005 and 47 of 2006 stands confirmed. Consequently, C.M.S.A.Nos.30
and 31 of 2011 are dismissed. No costs.
09.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
1. The District Judge, Nagapattinam.
2. The Principle Subordinate Judge, Mayiladurai.
S.M.SUBRAMANIAM, J.
Pns
https://www.mhc.tn.gov.in/judis/
C.M.S.A.Nos.30 & 31 of 2011
C.M.S.A.Nos.30 & 31 of 2011
09.02.2021
https://www.mhc.tn.gov.in/judis/
