S.Sampathkumar vs S.Leelavathi
2021 Latest Caselaw 4954 Mad

                                                                                      C.M.S.A.No.7 of 2019


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 25.02.2021

                                                          CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                    C.M.S.A.No.7 of 2019

                     S.Sampathkumar                                    .. Appellant
                                                            vs.

                     S.Leelavathi                                         .. Respondent

                     PRAYER : Civil Miscellaneous Second Appeal filed under Section 100 of
                     the Code of Civil Procedure, against the Judgement and Decree of the
                     Additional District Court, Hosur, in C.M.A.No.5 of 2015 dated 06.10.2018
                     confirming the judgement and decree of the Subordinate Court, Hosur, in
                     H.M.O.P.No.118 of 2013 dated 20.03.2015.
                                   For Appellants             : Mr.N.C.Ashok Kumar

                                   For Respondents            : Mr.A.Balamurugan

                                                       ORDER

The Judgment and Decree dated 06.10.2018 passed in C.M.A.No.5 of

2015 confirming the Judgment and decree dated 20.03.2015 passed in

H.M.O.P.No.118 of 2013, is under challenge in the present Civil

Miscellaneous Second Appeal.

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2. The questions of law raised by the appellant read as under:

" 1. Whether the courts below are right in law in dismissing the petition for divorce without properly appreciating the admission made by the respondent in her cross examination that she did not have objection for granting a decree for divorce.

2. Whether Courts below are right in law in dismissing the petition for divorce without appreciating the fact the respondent has come forward with unsubstantiated allegations in indulging in character assassination of the appellant amounting to cruelty?"

3. The learned counsel appearing on behalf of the appellant

contended that the marriage between the appellant and the respondent was

solemnised on 18.06.2010. The appellant and the respondent started their

matrimonial life happily and even a child was born out of the wedlock.

However, difference of opinion arose and the parties pleaded that they were

forced to leave their matrimonial life. Admittedly, the appellant and the

respondent are living separately for about 7 years. In spite of several

conciliations even before the police authorities, there was no reconciliation

between the parties. Thus, the appellant and the respondent admittedly are

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

living separately nearly about 7 years. The appellant husband filed an

application seeking dissolution of marriage mainly on the ground of cruelty.

The appellant has stated that the respondent wife started quarreling with his

parents and family members. The respondent wife did not behave as a

dutiful wife and she was spending more time in her uncle's house. The

petitioner has raised many such allegations by narrating several incidents.

The trial Court adjudicated the issues with reference to the documents and

evidences produced by the parties. The findings of the trial Court reveal that

the appellant did not able to establish the cruelty with an acceptable

evidence and further the trial Court relied upon the statement given by the

appellant before the police station which was marked as Ex.R6. The

documents marked in Ex.R6 state as under;

                                             "vd;   kidtp        jdp    tPL       itj;jhy;jhd;
                                   vd;Dld;    thH;ntd;    vd;W     Twpa[ss
                                                                         ; hh;/     ,g;bghGJ

vdf;F gzpapy;iy vd;gjhYk;. 6 khjk; vd; kidtp mt';f mk;kh tPlo; y; ,Uf;fl;Lk;/ 6 khjj;jpy; ehd; ey;y ntiyia njof;bfhz;L vd; kidtpia jdpahf itj;J FLk;gk; elj;Jfpnwd;/ vd; kidtpia mJtiu thuk; 2 Kiw brd;W tPl;oy; ghh;j;J tUfpnwd;/ mg;nghJ vd;id vd; khkpahh; juf;Fiwthf elj;jhky;

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

ey;y Kiwapy; ghh;j;Jf;bfhs;s ntz;Lk;/ vd;

                                        kidtpapd;         mz;zd; jk;gp ngrpaJ jtW vd;W vd;
                                        mk;kh       mg;ghtplk;       kd;dpg;g[      nfl;ljhy;     ehDk;
                                        Vw;Wf;bfhz;nld;/"

4. So also, the respondent wife had also given a statement before the

police and the said statement reads as under:

" vd; fzth; vd;id ey;ygoahf itj;Jf;bfhs;tjhf Twpdhh;/ Mdhy; vdf;F mtUila Tl;Lf; FLk;gj;jpy; thH tpUg;gk; ,y;iy/ jdp tPL vLj;J itf;Fk;go Twpndd;/ mjw;F vd; fzth; ntiy ,y;iy vd;gjhy; 6 khjj;jpy; tPL vLj;J itg;gjhft[k;. mJtiu mk;kh tPlo; y; ,Uf;Fk;go Twpdhh;/ 6 khjj;jpy; ntiy njof;bfhs;tjhft[k; mjd;gpwF jdptPL vLj;J ey;ygo ghh;j;Jf;bfhs;tjhft[k;. mJtiu vd;id vd; mk;kh tPlo; y; ,Uf;Fk;goa[k;. thuk; ,UKiw te;J ghh;j;Jf;bfhs;tjhft[k;. ey;y Kiwapy; ftdpj;Jf;bfhs;tjhft[k; Twpajhy; vd; fztUk; Vw;Wf;bfhz;L ,dp ey;ygoahf ele;Jf;bfhs;ntd; vd;W Twpajhy; ehDk; Vw;Wf;bfhz;nld;/ vdnt ehd; 6 khjk; vd; mk;kh tPlo; y; ,Uf;fpnwd;/"

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

5. Relying on the said statements given by the appellant and the

respondent before the police station, the trial Court arrived at a conclusion

that there is a possibility of reunion and accordingly rejected the petition for

dissolution of marriage. The findings of the trial Court reveal that before the

police station both the husband and the wife agreed to resume the

matrimonial home and therefore, the trial Court rejected the petition. The

appellant preferred an appeal and the First Appellate Court also relied on

the said findings and dismissed the petition. However, the learned counsel

for the appellant relied on the fact that during the cross examination, the

respondent wife deposed that she has no objection for divorce. Relying on

the said deposition of the wife, the learned counsel for the appellant has

stated that both the Courts have not considered the said aspect and

therefore, the judgments are perverse and liable to be set aside. The findings

of the First Appellate Court also is that the deposition of RW1 reveals that

during enquiry before the police, both the appellant and the respondent

agreed to live together.

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6. A Perusal of the judgment reveals that the appellant has not

established the cruelty by the respondent with sufficient evidence and

further, the parties have agreed to live together before the Police Station

during the trial. This Court is of the considered opinion that though such an

agreement was there between the parties in the year 2013, for the past 7

years, they are living separately. This apart, it is an admitted fact that the

appellant also converted his religion to Christianity and he is preaching

Christianity as of now. The respondent wife is living separately with her

daughter. The several allegations though said to be not established, the very

fact is that they are living separately and several efforts which were taken by

the family members also ended in vain. Even the assurances given by the

appellant and the respondent before the police has also not been honoured.

7. Under these circumstances, this Court is of the considered opinion

that the marriage has broken down even after giving an opportunity by this

Court. The learned respective counsels also made an attempt to conciliate

and the said effort is also not fructified. Thus, this Court is of the considered

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opinion that there is no purpose in not considering the ground for decree of

divorce. The very fact is that the ground of desertion exists as of now and

both the parties, in spite of their assurances, are unable to resume the

matrimonial home and living separately. There is no reason to deny the

decree of divorce between the parties.

8. In such circumstances, Courts are bound to adopt a practical

approach and the factual inference is that the parties are intending to harass

each other instead of finding out the better solution in the interest of their

life as well as the life of the child. On the contrary, both the parties are

litigating without any purpose and further not agreeing to find out the best

solution for their welfare and for the welfare of the child.

9. Under these circumstances, this Court has no hesitation in coming

to the conclusion that the marriage between the appellant and the

respondent has become ruined as per the ground existing as of now, at the

instance of either of the parties and accordingly, Judgment and Decree

dated 06.10.2018 passed in C.M.P.No.5 of 2015, confirming the Judgment

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

and decree dated 20.03.2015 passed in H.M.O.P.No.118 of 2013 are set

aside and consequently C.M.S.A.No.7 of 2019 stands allowed.

25.02.2021

kmm Index: Yes Internet:Yes Speaking order

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

To

1. The Subordinate Court, Hosur.

2. The Additional District Court, Hosur.

https://www.mhc.tn.gov.in/judis/ C.M.S.A.No.7 of 2019

S.M.SUBRAMANIAM, J.

kmm

C.M.S.A.No.7 of 2019

25.02.2021

https://www.mhc.tn.gov.in/judis/