Madras High Court
P.Aruna Devi vs M.Balasubramanian on 9 February, 2021
C.M.S.A.No.4 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.4 of 2016
and
C.M.P.No.1199 of 2016
P.Aruna Devi .. Appellant
Vs.
M.Balasubramanian .. Respondent
PRAYER This Civil Miscellaneous Second Appeal is filed under Section
28 of Hindu Marriage Act, r/w Section 100 of Code of Civil Procedure,
against the judgment and decree dated 15th day of December 2015 passed
by the District Judge at Tiruvannamalai in C.M.A.No.2 of 2013,
reversing the judgment and decree dated 04.04.2013 passed by the
Principal Sub Judge at Tiruvannamalai in H.M.O.P.No.76 of 2009.
For Appellant : Mr.A.K.Rajaraman
For Respondent : Notice Sent – Service awaited
1/10
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C.M.S.A.No.4 of 2016
JUDGMENT
The Civil Miscellaneous Second Appeal is preferred against the
judgment and decree dated 15.09.2015 passed by the District Judge at
Tiruvannamalai in C.M.A.No.2 of 2013, reversing the judgment and
decree dated 04.04.2013 passed by the Principal Sub Judge at
Tiruvannamalai in H.M.O.P.No.76 of 2009.
2. The Substantial Questions of law raised by the learned counsel
appearing on behalf of the appellant are as follows:
“(i) Whether the first appellate courts has found
mental pain, agony of suffering of such a magnitude that it
severs the bond between the wife and husband to dissolve the
marriage held between the parties in accordance with law?
(ii) Whether the First Appellate court being last fact
finding authority comprehensively apprised the entire
matrimonial life of the parties before dissolving the marriage
on the ground of cruelty in the light of settled principles laid
down by Apex Court and various High Courts?
(iii) Whether the first appellate Court has preceded the
burden of proof in a manner known to law?
(iv) Whether the First appellate below exercised their
power of discretion in accordance with the settled principles
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C.M.S.A.No.4 of 2016
of law while decreeing suit?
(v) Whether the lower appellate court being final fact
finding authority is right in dealing with appeal without
formulating specific issues as contemplated under Order 41
Rule 25?”
3. The marriage between the appellant and the respondent was
solemnized on 27.03.2015 at Vishalatchi Thirumana Mandapam, Chetty
Street, Thiruvannamalai as per the Hindu Rites and Customs. The
contentions of the appellant is that the spouses were not living happily
even immediately after the marriage. The respondent left the Matrimonial
home and thereafter, a petition under Section 13(1)(ia)(ib) of the Hindu
Marriage Act was filed seeking Dissolution of Marriage in
H.M.O.P.No.76 of 2009.
4. The trial Court adjudicated the issues and dismissed the petition
for divorce filed by the respondent/husband. The respondent filed an
appeal in C.M.A.No.2 of 2013. The First Appellate Court elaborately
considered the facts, circumstances as well as the evidences. It is
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C.M.S.A.No.4 of 2016
contended that the respondent examined himself as PW1 and marked
Ex.P1 to Ex.P3 and also one Settu examined as PW2. The appellant wife
examined herself as RW1 and her mother one Kuppu examined as RW2.
5. The First Appellate Court considered the grounds raised by the
appellant and the respondent. The point considered by the First Appellate
Court was that whether the wife did not comply with the Matrimonial
obligations as per the customs and conventions; Whether the
appellant/wife had insulted the respondent/husband by stating that the
respondent/husband is not capable of matrimonial life and this apart, the
appellant/wife insulted the respondent/husband by using caste name.
These all are the grounds raised by the respondent/husband, the First
Appellate Court considered the evidence of PW1 at the time of Cross
Examination and the same is as follows:
“12. After hearing both sides, records were perused.
A perusal of the evidence of PW1, at the time of cross
examination, who would say as follows:
27.03.2005y; jpUtz;zhkiy tprhyhl;rp
jpUkz kz;lgj;jpy; jpUkzk; ele;jJ/ bgz;
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C.M.S.A.No.4 of 2016
tPl;oy; jpUkzj;jpw;fhf bryt[ vJt[k;
bra;atpy;iy/////////////jpUg;gjpf;F ngha;tpl;L te;J
xU khjk; Tl vjph;kDjhuh; v';fs; tPl;oy;
,y;iy/ vdf;F btFehl;fshf jpUkzk;
Mfhjjhy; vd; bgw;nwhh;fs; vdf;F jpUkzk;
MdgpwF me;j bgz;zpd; jhypia jpUg;gjp
cz;oaypy; nghLtjhf ntz;obfhz;lhh;fs;/
jpUkzk; Md gpwF 10 ehl;fSf;F rhe;jp
KTh;j;jk; eilbgwtpy;iy/ 10 ehs; fHpj;J
rhe;jp KTh;j;jk; ele;jJ/ md;W Kjy; ,ut[
ele;J Koe;jJ/ Kjy; ,ut[ md;W v';fSf;Fs;
Kjyput[ Vw;gltpy;iy/ md;iwf;F vjph;kDjhuh;
xj;JiHf;ftpy;iy/ mth; jahuhf ,y;iy/ 3
ehl;fs; fHpj;Jjhd; v';fSf;Fs; Kjyput[
ele;jJ/ Kjyput[ ele;jnghJ vd; Mz;ikia
gw;wp vjph;kDjhuh; kpft[k; nftykhf ngrpdhh;/
vdf;F 9f;F ,Ug;gJnghy; vd; Mz;Fwp
,Uf;fpwJ vd;W mrp';fkhf ngrpdhh;/ MdhYk;
v';fSf;Fs; clYwt[ ele;jJ/ v';fSf;Fs;
clYwt[ Vw;gl;lgpd;dh;jhd; vjph;kDjhuh;
vd;Dila Mz;ikia gw;wp nftykhf
ngrpdhh;/ jpUg;jp ,y;iy vd;whh;/ mjd;gpwF
v';fSf;Fs; clYwt[ elf;ftpy;iy/ md;W xnu
ehs;jhd; v';fSf;Fs; clYwt[ ele;jJ/
jpUkzj;jpw;F gpwF vjph;kDjhuh; vd;Dld;
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bkhj;jk; xnu khjk;jhd; kl;Lnk thH;e;jhh;/
Vg;uy; filrpapy; 2005?y; v';fs; tPl;oy; ,Ue;J
vjph;kDjhuh; gphpe;J brd;Wtpl;lhh;/ Mof;F
nghdth; mg;gona ,Ue;Jtpl;lhh;/@
13. A Cursory reading of the above said evidence of PW1, at
the time of cross examination would reveal the fact that it
was the evidence of PW1 that after the marriage for 3 days
there was no conjugal relationship between the petitioner
and the respondent. After 3 days only, there was a conjugal
relationship. The respondent did not co-operate for
conjugal relationship with the petitioner for 3 days from the
date of marriage. After the conjugal relationship, the
respondent had insulted the petitioner regarding his
potentiality. The male organ of the petitioner was very small
and it was similar to the organ of transgender and also it
was the evidence of the petitioner that the respondent was
not satisfied with the performance of the petitioner. Further,
it was deposed by the petitioner as follows:
@mg;nghJ vjph;kDjhuh; tPl;oy; bghl;ligah
cdf;F FHe;ij xUnflh vd;W jpl;otpl;lhh;fs;/
vjph;kDjhuh; tPl;ow;F ehd; nghdnghJ
vjph;kDjhuhpd; mk;kht[k; vd;id ghh;j;J
gwigah eP ,jw;Fnky; ,';Fte;jhy;
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bkhj;jngiua[k; !;nlrDf;Fs;
cl;fhuitj;JtpLntd; vd;W jpl;odhh;/
mjd;gpwF ehd; nghfnt ,y;iy/ vjph;kDjhuh;
tPl;oy; vjph;kDjhuh; vd; rhjpbgaiu brhy;yp
jpl;odhh; vd;W brhy;yp ,Uf;fpnwd;/ vd; mk;kh
eha[L vd; mg;gh Mjpjpuhtplh;/@
14/ A cursory reading of the above said evidence of the
petitioner, would reveal the fact that the petitioner was
insulted by the respondent by uttering his caste. A perusal
of the evidence of RW1, at the time of cross examination,
who would say as follows:
@jPghtspf;F vd; jk;gp thpir itf;f
te;jhh;/ me;j jPghtsp jiy jPghtsp/ jhypia
fHw;wp nghltpy;iy vd;gjhy; vd; tPl;oy;
,Ue;J bghpath;fs; ahUk; tuTlhJ vd;W
brhy;yptpl;ljhy; vd; jk;gp thpir itj;jhh;/
jiy jPghtspf;F vd; mk;kh tPl;ow;F ehd;
nghftpy;iy/ vd; khkpahh; nghfTlhJ vd;W
brhd;djhy; ehd; nghftpy;iy/ vd; khkpahh;
tPl;oy;jhd; jiy jPghtsp bfhz;lhondhk;/@
15/ A perusal of the evidence of RW2, who would say as
follows:
@jPghtspf;F khg;gps;is bgz;iz ngha;
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C.M.S.A.No.4 of 2016
ehd; Tg;gpl;nld;/ jPghtspf;F vd; tPl;ow;F
te;jhh;fs;/ jiyjPghtsp vd; tPl;oy; itj;Jjhd;
bfhz;lhodhh;fs;/@
A conjoint reading of the evidences of RW1 and RW2,
would reveal the fact that RW1 and RW2 deposed before the
Court contradicting with each other regarding the material
facts that is, it was evidence of RW1 at the time of cross-
examination that RW1 did celebrate the first Deepavali
after marriage in the mother-in-law's house namely
petitioner's house. But it was the evidence of RW2
contradicting the evidence of RW1 that the petitioner and
the respondent had celebrated the first Deepavali after
marriage in the respondent's mother's house. It was a vital
contradiction regarding the material facts. Though it was
alleged by the respondent that the petitioner and his family
members were harassing the respondent demanding dowry.
But no documents was produced for establishing the fact
that there was a dowry harassment. It was also the admitted
evidence of RW1 that RW1 was living with her mother, in
her mother's family by consent. RW2 also deposed before
the court that she did not take any attempt to send RW1 to
the petitioner's house. Even the respondent did not come
forward before the court of law for taking any efforts to live
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with the petitioner. On the other hand, the petitioner had
come forward before the court as mentioned thereon
seeking the relief as mentioned in this case. A perusal of
Ex.P3, which was marked through RW1 at the time of cross
examination that there was no specific allegation against
the petitioner and the family members for harassing
dowry.”
6. Strongly relying on the above portion of the evidence, the First
Appellate Court reversed the judgment of the trial Court granted decree
of divorce. The marriage has irretrievably broken down. The parties are
living separately for many years. The First Appellate Court mainly
considered the fact that the appellant/wife had not fulfilled the
Matrimonial obligations, which resulted separation and under these
circumstances, this Court do not find any perversity or infirmity as such
with reference to the findings as well as the judgment of the First
Appellate Court. Further, the spouses are living separately for many years
and under these circumstances, this Court is not inclined to accept the
grounds raised in the present Civil Miscellaneous Second Appeal.
S.M.SUBRAMANIAM, J.
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C.M.S.A.No.4 of 2016
kak
7. This apart, the Substantial questions of law raised is also
relatable to the facts and circumstances, which were already adjudicated
by the trial Court as well as by the First Appellate Court. This being the
factum, the judgment and decree dated 15.09.2015 passed by the District
Judge at Tiruvannamalai in C.M.A.No.2 of 2013, reversing the judgment
and decree dated 04.04.2013 passed by the Principal Sub Judge at
Tiruvannamalai in H.M.O.P.No.76 of 2009 stands confirmed and
consequently, the Civil Miscellaneous Second Appeal in C.M.S.A.No.4
of 2016 is dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
09.02.2021
Kak
Index:Yes
Speaking order
To
1.The District Judge, Thiruvannamalai.
2.The Principal Sub Judge, Thiruvannamalai.
C.M.S.A.No.4 of 2016
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