Madras High Court
V.Viyagappan vs A.Amulrani on 24 February, 2021
C.M.A. 2601 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No. 2601 of 2016
V.Viyagappan ..Appellant
Vs
A.Amulrani ..Respondent
Prayer : Appeal filed under Section 55 of the Indian Divorce Act,
1869, against the fair and final order dated 29.07.2016 made in
I.D.O.P.No. 136 of 2015 on the file of the Principal District Court,
Tiruppur.
For Appellant : Mr.D.R.Arun Kumar
For Respondent : No appearance
JUDGMENT
The fair and decreetal order dated 29.07.2016 made in
I.D.O.P.No. 136 of 2015 is under challenge in the present civil
miscellaneous appeal.
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C.M.A. 2601 of 2016
2. The appellant filed a petition under Section 10 of the Indian
Divorce Act, 1869, seeking dissolution of marriage. The marriage
between the appellant and the respondent was solemnized on
12.09.2011 as per the Christian rites and customs.
3. Learned counsel for the appellant states that they have not
been continuing in the matrimonial home for about two months.
During the short span of period, the difference of opinion arose
mainly on the ground that the respondent/wife was a married
woman and by suppressing the fact, she married the appellant.
Apart from this, the appellant contended other allegations regarding
adultery and desertion. It is pertinent to note that the respondent
attended the counselling programme before the trial Court and
thereafter not contested the case. The trial Court made a finding
that the respondent had not appeared before the trial Court nor
contested the case by filing documents or adducing evidence. Thus,
the trial Court passed an exparte order rejecting the petition filed by
the appellant for dissolution of marriage.
4. Learned counsel for the appellant further states that the
trial Court has not given an opportunity to the appellant to establish
his case. This apart, the contention of the appellant set out in the
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C.M.A. 2601 of 2016
petitions were not defended by the respondent. Thus, declining the
relief is not in consonance with the principles and, therefore, the
order passed by the trial Court is to be set aside.
5. This Court is of the considered opinion that admittedly, the
marriage became irretrievably broken down. The parties are not
living together for more than nine years. The ground of desertion
was taken by the appellant before the trial Court. However, the
petition filed by the appellant was not defended by the respondent
and even after service of notice, the respondent has not appeared
either before the trial Court or before this Court when the present
appeal is taken up for hearing.
6. Thus, this Court is of the considered opinion that
remanding the matter back would not serve the purpose and the
litigation may be prolonged. As far as the merits of the case are
concerned, this Court cannot adjudicate the allegations regarding
cruelty in the absence of any examination of witnesses. As far as
the ground of desertion is concerned, it is an admitted fact that the
parties are living separately for about nine years. Therefore, this
Court can rely on the ground of desertion based on the fact that the
appellant and the respondent are not living together for about nine
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C.M.A. 2601 of 2016
years. Thus, the ground of desertion for more than two years as
contemplated under Section 10 of the Act is existing as of now and
based on the said desertion, the appellant is entitled for decree of
divorce.
7. Accordingly, the fair and decreetal order dated 29.07.2016
passed in I.D.O.P.No. 136 of 2015 is set aside and the civil
miscellaneous appeal stands allowed. No costs.
24.02.2021
Index: Yes
ssm
To
The Principal District Court, Tiruppur.
https://www.mhc.tn.gov.in/judis/
C.M.A. 2601 of 2016
S.M.SUBRAMANIAM, J.
(ssm)
C.M.A.No. 2601 of 2016
24.02.2021
https://www.mhc.tn.gov.in/judis/
