Anandakrishnan vs Pushpalatha
2021 Latest Caselaw 4494 Mad

                                                                        C.M.S.A.Nos.18 & 19 of 2013

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 22.02.2021

                                                         CORAM

                            THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                             C.M.S.A.Nos.18 & 19 of 2013
                                                  M.P.No.1 of 2013

                      Anandakrishnan                                                   .. Appellant
                                                            vs.

                      Pushpalatha                                                      .. Respondent

COMMON PRAYER : Civil Miscellaneous Second Appeals filed under Order XXVIII of C.P.C read with Section 100 of C.P.C against the judgment and decree dated 09.10.2012 passed in C.M.A.Nos.43 & 41 of 2008 on the file of the District Court, Tiruvarur and reversing the Decree and Judgment passed on 14.03.2008 in H.M.O.P.Nos.44 & 97 of 2005 on the file of the Sub-ordinate Judge, Tiruvarur.

                            In both petitions
                                For Appellant                     : Mr.A.Ganesan

                                For Respondent                    : Mr.M.Thamizhavel







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                                                                       C.M.S.A.Nos.18 & 19 of 2013



                                                 COMMON JUDGMENT

The common judgment in C.M.A.Nos.41 and 43 of 2008 dated

09.10.2012 reversing the common judgment passed by the Sub-Court,

Thiruvarur in H.M.O.P.Nos.44 & 97 of 2005 dated 14.03.2008 is under

challenge in the present Civil Miscellaneous Second Appeals.

2. The husband is the appellant, who instituted a petition for dissolution

of marriage. Simultaneously, the respondent/wife filed a petition for

restitution of conjugal rights. Both petitions were tried together. The

marriage between the petitioner and the respondent was solemnized on

16.06.1999 at Thiruvarur, as per the Hindu Rites and customs. A female

child was born from and out of the wedlock and now aged about 20 years.

The trial Court adjudicated the issues with reference to the grounds raised,

more specifically, cruelty and desertion. The trial Court granted dissolution

of marriage, against which, the wife filed Civil Miscellaneous Appeal and

the First Appellate Court dismissed the divorce petition and allowed the

petition for restitution of conjugal rights.

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3. The substantial question of law raised in the second appeals is that

whether the respondent can be allowed to enjoy the fruits of set aside order

passed in C.M.A.No.43 & 41 of 2008 against H.M.O.P.No.97 of 2005 on

the file of the District Court, Tiruvarur and Sub-ordinate Court, Tiruvarur;

whether the respondent is got maintenance amount at a same time from

HMOP proceedings and as well as in the proceedings under Criminal

Procedure Code;

4. Though the substantial question of law raised are relatable to the facts,

this Court is of the considered opinion that the learned counsel appearing on

behalf of the appellant now raised a ground that even after the dismissal of

the petition for divorce filed by the respondent and after passing an order for

restitution of conjugal rights in the year 2012, both the appellant and the

respondent are living separately for more than 15 years. Thus, the marriage

become irretrievably broke down and the allegations are being raised

between the parties even now. When there is no scope for resumption of

matrimonial life, there is no purpose in continuing the litigation and non-

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implementation of the decree of restitution is also a ground for divorce and

further, the respondent/wife is also not willing for re-union and the ground

of desertion is also existing between the parties.

5. Several allegations are raised regarding the cruelty. The appellant states

that the respondent has never shown any respect towards him as he is not

possessing a educational qualification and completed SSLC. Per contra, the

respondent/wife had completed Chartered Accountant and she has possessed

many other educational qualifications. By virtue of the higher qualification,

there was no compatibility between the husband and wife. Therefore, the

appellant could not able to continue the matrimonial home with the

respondent. Even, he was not allowed to free in the home. Several such

allegations were raised. The trial Court adjudicated the issues and granted

the decree of divorce and dismissed the petition for restitution.

6. The First Appellate Court set aside the judgment and decree of the trial

Court mainly on the ground that the desertion was about 1 ½ years which

was insufficient to grant the decree of divorce. The cruelty was also not

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established so as to grant dissolution of marriage.

7. This Court is of the considered opinion that on account of efflux of

time, those allegations now considered by both the Courts below deserves no

further adjudication. However, the fact remains that the marriage was

solemnized on 16.06.1999 and the girl child is also now aged about 20

years. The appellant and the respondent are living separately for the past

about 15 years. Even now, there is no scope for resumption of matrimonial

home. Both the appellant and the respondent were present before this Court.

This Court also made an attempt whether there is a possibility of reunion-.

Both the parties are adamant and there is no idea of re-union either by the

appellant or by the respondent. Contrarily, the respondent is interested in

claiming more maintenance from the appellant. Undoubtedly, she is entitled

for maintenance, for which, the learned counsel appearing for the respondent

states that the petition for maintenance is already pending. The respondent is

at liberty to pursue the petition for claiming maintenance.

8. As far as the present appeal is concerned, when the appellant and the

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respondent are not living together for the past about 15 years, there is no

scope for re-union even at this point of time. The ground of desertion during

the relevant point of time was 1 ½ years and now desertion between the

parties is about 15 years. Beyond this, the order of restitution passed by the

First Appellate Court was not implemented. Non-implementation of the

decree of restitution is also a ground for divorce. This Court finds that the

allegations become lapsed after 15 years. Even after separation of 15 years,

the parties have no intention to live together. The ground of desertion is also

continuous for more than 15 years. The restitution of order passed by the

First Appellate Court is also not honoured by the parties. This being the

factum, this Court has to arrive a conclusion that the marriage become

irretrievably broke down and there is no scope for further any resumption.

Accordingly, the appellant is entitled for the decree of divorce both on the

ground of desertion and on the ground that the restitution of conjugal rights

ordered by the First Appellate Court has not been honoured by the parties.

9. Accordingly, the common judgment and decree dated 09.10.2012

passed in C.M.A.Nos.41 and 43 of 2008 reversing the common judgment

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dated 14.03.2008 passed in H.M.O.P.Nos.44 and 97 of 2005 are set aside

and consequently, the Civil Miscellaneous Second appeals stand allowed. No

costs. Consequently, connected miscellaneous petition is also closed.

22.02.2021

ssb Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order

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S.M.SUBRAMANIAM, J.

ssb

To

1. District Court, Tiruvarur

2. Sub-ordinate Judge, Tiruvarur.

C.M.S.A.Nos.18 & 19 of 2013

22.02.2021

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