S.Pradeepkumar vs S.Sathiya @ Samuli
2021 Latest Caselaw 4967 Mad

                                                                                C.M.S.A. 37 of 2013


                                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. 37 of 2013

                      S.Pradeepkumar                                            ..Appellant

                                                          Vs

                      S.Sathiya @ Samuli                                        ..Respondent


                      Prayer : Appeal filed under Section 28(1) of the Hindu Marriage Act
                      read with Section 100 of CPC against the judgment and decree
                      dated 08.01.2013 made in H.M.C.M.A.No.1 of 2010 on the file of
                      the III Additional District Court, Vellore at Tirupattur (HMCMA No.9
                      of 2007 on the file of the Principal District Court, Vellore), reversal
                      of the judgment and decree dated 27.03.2007 made in H.M.O.P.No.
                      32 of 2003 on the file of Sub-Court, Tirupattur.


                                     For Appellant    :        Mr.N.Manokaran
                                     For Respondent   :        Mr.T.L.Thirumalaisamy


                                                      JUDGMENT

The judgment and decree dated 08.01.2013 passed in

H.M.C.M.A.No. 1 of 2010, reversing the judgment and decree dated

27.03.2007 passed in H.M.O.P.No. 32 of 2003, is under challenge

in the present civil miscellaneous second appeal.

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C.M.S.A. 37 of 2013

2. The substantial questions of law raised by the appellant

are as under:

“a) Whether the First Appellate Court has committed an error in dismissing the petition for divorce on the ground of cruelty by treating them as an ideal husband and ideal wife instead of considering the social stata of the parties, their ways of life, relationship, temperament and emotions that they have been conditioned by their social status?

b) Whether the First Appellate Court is right in dismissing the divorce petition particularly when the parties have been living separately for the past 12 years and their marriage has been broken down irretrievably?

c) Whether act complaint of by the appellant would amount to mental cruelty when the feeling deep anguishes, disappointment and frustration has rendered the marriage life as a misery to him?

d) Whether the judgment of the First Appellate Court is in compliance with the mandatory provisions of Order 41 Rule 31 CPC?”

3. The marriage between the appellant and the respondent

was solemnized on 06.07.1998 at Vaniambadi as per the Hindu

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C.M.S.A. 37 of 2013

rites and customs. The appellant, during the relevant point of time,

was working as a Computer Science Engineer at Singapore. After

marriage, the appellant and the respondent were living together

and the marriage was also consummated. It is stated that the

respondent/wife came from a highly affluent family and not well

acquainted with domestic chores and thoroughly unfamiliar with

cooking. The petitioner states that he being from a humble

background and timid, kind disposition learnt to live with her apart

from the domestic chores inspite of his pressure in the work. The

respondent fell ill frequently and on investigation it was found to

the shock and dismay of the appellant that the respondent was

suffering from a tumor in her right breast and she was brought

back to India and treated at Vellore C.M.C. Hospital. The

respondent did not intimate the in-laws regarding the process of

treatment being taken. She was at Vaniambadi for over eight

months and under those circumstances, the appellant has taken a

decision to file a petition for divorce. However, by the end of 1999,

the respondent/wife was diagnosed to have pulmonary tuberculosis

and was repeatedly complained of illness. Again she was brought

back to India to undergo treatment at C.M.C Hospital, Vellore

where she had to stay at Vaniambadi in her parent's house for a

longer duration, during which time also, she never visited the

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C.M.S.A. 37 of 2013

house of the appellant at Natrampalli. Finally, the appellant arrive

at a conclusion that the marriage became irretrievably broken

down and filed a petition for dissolution of marriage.

4. The case was contested by the respondent/wife. The trial

Court granted the decree of divorce on the ground that the

respondent never visited the house of her husband at any point of

time. The respondent/wife did not attend the funeral of her father-

in-law. The respondent was suffering from various ailments and

continuously taking treatment between 1998 and 2002. The

respondent is medically unfit for procreation even through IVF.

There was no conjugal relationship between the parties as on the

date of filing of the petition and the marriage between them is

unworkable. The respondent has caused serious emotional and

sentimental stress in the mind of her husband and made allegation

against the appellant as if he intended to marry a widow with her

daughter aged 18 years. The respondent has tried to demoralize

the character of the appellant/husband. Considering all these

grounds, the trial Court granted dissolution of marriage.

5. The respondent/wife preferred appeal before the trial

Court, Vellore, which was subsequently transferred to III

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Additional District Court, Vellore at Tirupattur. The First Appellate

Court adjudicated the issues based on the findings of the trial

Court and allowed the appeal by setting aside the judgment and

decree passed by the trial Court.

6. Learned counsel appearing on behalf of the appellant

mainly contended that the marriage became irretrievably broken

down as the spouses are living separately for about twenty years.

Further, the appellant got re-married during the year 2008. After

granting of the decree of divorce by the trial Court and before

receiving the information, an appeal was filed by the

respondent/wife. Now, the appellant is living with his wife and,

therefore, it may not be possible for any reunion at all.

7. Learned counsel appearing on behalf of the appellant

further contended that the appeal filed by the respondent/wife was

allowed on the ground that the appellant could not take the

respondent/wife to attend the funeral ceremony of his father. The

appellant and the respondent lived together till 2002. Therefore, it

cannot be stated that there was no matrimonial relationship. The

appellant got remarried even without awaiting for the disposal of

the appeal filed by the respondent. The grounds relied upon by

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the First Appellate Court are unsustainable in view of the fact that

when the respondent had no intention to attend the funeral

function of the father-in-law and further taking treatment for

serious disease of cancer and pulmonary tuberculosis, there is no

reason to consider the said ground to reject the contentions of the

appellant/husband. Further, the finding of the First Appellate Court

is that the appellant and the respondent lived together till 2002 is

immaterial in view of the fact that the respondent was living

separately from the year 2000 onwards. This apart, soon after the

marriage, the respondent frequently fell ill and subsequently

diagnosed to serious disease, which resulted in continuous

treatment for the respondent/wife. This apart, the

respondent/wife is not fit to give birth to a child and therefore the

First Appellate Court has committed an error in considering the

said ground raised by the respondent/wife.

8. Regarding remarriage, the decree of divorce was granted

by the trial Court and the re-marriage was solemnized even before

the receipt of notice on the first appeal. Therefore, there is no

impediment for solemnization of re-marriage and the said ground

taken by the First Appellate Court is untenable. The right of the

appellant for re-marriage after getting the decree of divorce cannot

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be restricted or denied.

9. Learned counsel appearing on behalf of the respondent

objected the said contention by citing that both the appellant and

the respondent started their matrimonial home happily. They were

living together for about one year at Singapore and there was no

complaint about the respondent by the appellant/husband. This

being the fact situation, the illness cannot be a ground to make the

claim that she is not fit for the matrimonial life. Such a serious

allegation raised by the husband is untenable in view of the fact

that the respondent had taken treatment and even thereafter she

met the husband and made a request for reunion. Instead of

accepting the proposal of reunion, the appellant/husband has filed

a petition for divorce and, therefore, his intention was otherwise

and thus the finding of the First Appellate Court is in consonance

with law and there is no perversity as such. Thus, the appeal will

have to be dismissed.

10. This Court is of the considered opinion that the admitted

fact is that the spouses are living separately for twenty years.

Undoubtedly, the marriage became irretrievably broken down. The

marriage was solemnized on 06.07.1998. Though the matrimonial

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life started between the appellant and the respondent at

Singapore, the respondent was continuously not well and

subsequently taking treatment for the diseases cancer and

pulmonary tuberculosis. Thus, she had to take treatment

continuously by staying in her parents house at Vaniyambadi. One

could understand the minds of young married couple. If the young

married couple within a short span of period diagnosed with

serious diseases, they will get agitated and then they will find an

alternative solution for this. In the present case, one year after the

marriage, the serious disease was diagnosed and further the

husband came to know that the respondent/wife is not capable of

giving birth to a child. This being the fact circumstances

established, it was not repudiated by the respondent/wife and the

Court can come to a reasonable conclusion that the mind of the

spouses would be frustrated and the continuance of matrimonial

home would become difficult. Under those circumstances, one

cannot find fault with the husband or wife in either way for the

purpose of seeking dissolution of marriage. Undoubtedly, every

husband is duty bound to take care of her wife or vice versa.

However, certain serious circumstances, if arisen, soon after the

marriage, either of the spouses will get frustrated and, therefore,

the decision taken by the husband is to be construed as an act of a

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normal man and cannot be seen in isolation. This being the factum,

though the husband in the present case is duty bound to take care

of the wife, his conclusion for filing a petition for divorce cannot be

found fault with. However, the appellant/husband carefully sent

her back to India for taking treatment, such a conduct also cannot

be brushed aside. He lead the respondent to take continuous

treatment in her parents house but his complaint was that his wife

did not attend the funeral of his father. However, it is contested by

stating that the wife was not in a position to travel alone and it is

the duty of the appellant/husband to take her to the house of his

father and that was not done by him. Thus, this Court is of the

opinion that beyond all these allegations, the factum remains that

the respondent/wife was affected with certain serious disease soon

after the marriage, more specifically, cancer and pulmonary

tuberculosis. Thus, she was forced to take continuous treatment by

staying in her parents home that created a breakage in their

matrimonial life and which would not have been avoided by either

of the parties as it was a compelling situation and circumstances

which cannot be stated to be a motivated on either side. Certain

unforeseen circumstances are an act of God which separates the

matrimonial home on account of certain serious diseases. One

cannot find fault with either the husband or the wife. However, the

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rights of the parties cannot be denied once the husband found that

the wife is not capable for continuing the matrimonial life.

However, he has got every right to file a petition for divorce and in

the present case that was done by the husband. The trial Court

rightly considered the reasons stated for grant of decree of divorce

are certainly candid and convincing and this Court do not find any

perversity. But the First Appellate Court has proceeded based upon

misplaced sympathy. Undoubtedly, the situation of the

respondent/wife was pathetic as soon as after her marriage with

the appellant she was diagnosed with certain diseases. Certainly,

the same would have caused mental agony to the respondent/wife.

However, that cannot be taken for the purpose of reversing the

judgment of the trial Court. In the present case, the husband

cooperated for taking treatment and there was no such allegation

against the husband. But the circumstances made them to live

separately as the respondent/wife was taking continuous treatment

for certain serious disease, more specifically, cancer and

pulmonary tuberculosis. She has to take treatment in C.M.C.

hospital, Vellore. This being the facts and circumstances, the First

Appellate Court has committed an error in not appreciating the

evidence as well as the findings arrived by the trial Court with

reference to the documents and evidences.

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11. Accordingly, the judgment and decree dated 08.01.2013

passed in H.M.C.M.A.No. 1 of 2010, reversing the judgment and

decree dated 27.03.2007 passed in H.M.O.P.No. 32 of 2003 is set

aside and consequently, the C.M.S.A.No. 37 of 2013 stands

allowed. No costs.

25.02.2021

Index: Yes ssm

To

1.The III Additional District Court, Vellore at Tirupattur

2.The Principal District Court, Vellore

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C.M.S.A. 37 of 2013

S.M.SUBRAMANIAM, J.

(ssm)

C.M.S.A.No. 37 of 2013

25.02.2021

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