Madras High Court
Madhalai Arokiyasamy vs Sesilirani on 26 February, 2021
C.M.A. No.2811 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM
C.M.A. No.2811 of 2016
Madhalai Arokiyasamy ... Appellant
-vs-
Sesilirani ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 55 of the Indian
Divorce Act to set aside the fair and decretal order dated 30.09.2016
in FC IDOP No.1 of 2016 on the file of the learned Judge, Family Court,
Dharmapuri.
For Appellant : Mr.R.Selvakumar
For Respondent : No appearance
JUDGMENT
(Judgment of this Court was made by T.RAJA,J.)
This appeal has been directed against the impugned fair and
decretal order dated 30.09.2016 passed by the learned Judge, Family
Court, Dharmapuri in FC IDOP No.1 of 2016 dismissing the prayer of
the appellant husband for grant of divorce under Section 10(1)(x) of
the Indian Divorce Act 1869.
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C.M.A. No.2811 of 2016
2.Mr.R.Selvakumar, learned counsel appearing for the appellant
husband, assailing the impugned order, refusing to grant divorce,
pleaded that after solemnisation of marriage between the appellant
and the respondent on 18.10.1999 as per the Christian rites and
customs, they were blessed with a male child namely, M.Infent Bosco.
Due to difference of opinion arose between themselves, without even
adjusting the family problems which are frivolous in nature, the
respondent wife filed a petition in FC IDOP. No.1 of 2014 seeking
divorce under Section 10(1)(ix) and (x) of the Indian Divorce
Amendment Act citing two grounds namely, desertion that had
occurred in the year 2011 and cruelty, said to have caused to her by
the husband appellant herein. However, the Family Court, Dharmapuri,
finding no merits whatsoever, rejected the petition filed by the
respondent wife for grant of divorce vide order dated 22.06.2015.
After dismissal of the FC IDOP No.1 of 2014 filed by the respondent
wife, she did not come back to the matrimonial home to lead a family
life. Thereafter, though both of them filed petitions seeking restitution
of conjugal rights, they have not come forward to prosecute their
cases, as a result, both the petitions were dismissed for non
prosecution. Since there was no compromise or re-union from the side
of the respondent wife, the husband appellant has filed FC IDOP No.1
of 2016 under Section 10(1)(x) of Indian Divorce Act 1869 for
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C.M.A. No.2811 of 2016
dissolution of marriage before the Family Court, Dharmapuri and the
respondent wife filed a counter affidavit, surprisingly, taking a stand
that she agreed for divorce subject to condition that her jewellery and
articles, lying at the hands of the appellant, have to be returned.
3.Learned counsel appearing for the appellant further submitted
that when the respondent wife has approached the Family Court,
Dharmapuri even in the year 2014, after giving birth to a male child on
16.10.2007, the appellant husband, by way of filing a written
statement, contested the petition for grant of divorce. After dismissal,
finding no response whatsoever from the respondent wife for re-union,
the appellant husband has filed the FC IDOP No.1 of 2016 seeking
divorce, in which, respondent wife has filed a counter affidavit stating
that she was agreeable for divorce only on payment of Rs.20,00,000/-
towards permanent alimony and also on return of 15 sovereigns of
gold jewels belonging to her, Rs.1,00,000/- given towards marriage
expenses and Rs.47,000/- given for purchase of bike. When there was
no proof for giving such amount and jewellery, the question of return
could not arise. Moreover, when the respondent wife has been living
separately from the year 2011 that could be seen from the petition
filed by the respondent in the FC IDOP No.1 of 2014 and also seen
from the counter filed by the respondent wife in the FC IDOP No.1 of
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C.M.A. No.2811 of 2016
2016 before the Family Court, Dharmapuri, it goes without saying that
they were not living together for more than a decade. But the Family
Court overlooking the above facts, has dismissed the petition filed by
the appellant.
4.Learned counsel appearing for the appellant, by way of filing
additional typed set, has placed on record salary certificates issued to
the respondent wife for the months of November and December 2020
and January 2021 stating that she is working as a Secondary Grade
Assistant in R.C.Fathima Primary School, Kethanahalli, Dharmapuri
District and drawing a net salary of Rs.51,834/-.
5.Though notice has been served on the respondent and name of
the respondent has been printed in the cause list, there is no
appearance on her behalf, which shows that she is not willing to
prosecute the case.
6.In the normal course of hearing, though we could have refused
to receive such documents, which are not produced before the Trial
Court and the same are also not presented under Order XLI Rule 27 of
C.P.C. which provides for Production of additional evidence in Appellate
Court, we are inclined to receive the additional typed set filed by the
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C.M.A. No.2811 of 2016
appellant, since no purpose would be served by directing the appellant
to move an application that would also cause further delay in disposing
the matter and also in the absence of the respondent wife.
7.As rightly canvassed by the learned counsel for the appellant,
even in the year 2014, the respondent wife had moved a petition in
FC IDOP No.1 of 2014 for grant of divorce under Section 10(1)(ix) and
(x) of the Indian Divorce Amendment Act before the Family Court,
Dharmapuri. Secondly, before filing of the FC IDOP. No.1 of 2014 by
the respondent wife, both the parties have independently moved
applications seeking restitution of conjugal rights, but, for the reasons
best known to them, they did not prosecute the matter and they are
not willing to go for re-union. Thirdly, even after the dismissal of the
FC IDOP No.1 of 2014 on 22.06.2015, they have not come forward to
lead a fresh matrimonial life. Therefore, the husband appellant herein
has moved before the Family Court, Dharmapuri in FC IDOP No.1 of
2016 seeking dissolution of marriage.
8.Learned counsel for the appellant substantiated his argument
that after birth of their son on 16.10.2007, they were not living
together and that the respondent wife is working as a Secondary
Grade Assistant in R.C.Fathima Primary School, Kethanahalli,
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C.M.A. No.2811 of 2016
Dharmapuri District and drawing a net salary of Rs.51,834/-.
Therefore, the conduct of the respondent clearly shows that she has
deserted the matrimonial home even in the year 2011. The reason
being that we are able to see from the records that both of them filed
petitions seeking restitution of conjugal rights in FC IDOP Nos.3 and 4
of 2012 that goes without saying that when they were living
separately, they approached the Court independently seeking
restitution of conjugal rights. Subsequent to the dismissal of the FC
IDOP No.1 of 2014, the appellant husband has filed FC IDOP No.1 of
2016, which clearly shows that they are not living together. Therefore,
the learned counsel for the appellant argued that due to desertion, the
appellant has been put to face mental cruelty, but, this has been
overlooked by the Family Court, Dharmapuri.
9.When the marriage took place on 18.10.1999, after a gap of
nearly 7 years, a male child was born on 16.10.2007. When the
husband started showing his grievance that his wife declined to
perform her conjugal rights, the respondent wife left the matrimonial
home during the year 2011. Thereafter, even consistent efforts were
taken by the husband for reunion, they went in vain and resultantly,
he has been subjected to mental agony and torture. Again when he
moved FC IDOP. No.4 of 2012 for restitution of conjugal rights, the
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C.M.A. No.2811 of 2016
same was dismissed for non prosecution, due to her assurance to
rejoin the matrimonial life, but, she filed FC IDOP. No.1 of 2014 for
dissolution of marriage. Due to refusal for performing her conjugal
rights by leaving the matrimonial home in 2011, he has been put to
mental cruelty.
10.The Apex Court, also, while defining as to what is 'mental
cruelty', stated that the feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of other for a long
time may lead to mental cruelty. In the present case, we are able to
see that from the year 2011 onwards, due to mental cruelty caused by
the respondent wife in not performing the conjugal rights, the
appellant was put to deep anguish, disappointment, frustration for a
long time. Therefore, we are of the considered opinion that it is a fit
case for grant of divorce on the ground of cruelty. In this regard, it is
useful to refer the judgment of the Apex Court reported in (2007) 4
SCC 511 in the case of Samar Gosh vs. Jaya Gosh as under:
'101.No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of “mental cruelty”. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive:
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C.M.A. No.2811 of 2016
(i)On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering
as would not make possible for the parties to live
with each other could come within the broad
parameters of mental cruelty.
(ii)On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clearly that situation is such that the
wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other
party.
..
(iv)Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one
spouse caused by the conduct of other for a long
time may lead to mental cruelty.'
9.A perusal of the above judgment shows that the feeling of
deep anguish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty. As rightly
argued by the the learned counsel for the appellant that due to
desertion, the appellant has been put to face mental cruelty. But such
a vital aspect has been overlooked by the Family Court in not
considering the petition filed by the appellant seeking dissolution of
marriage. Therefore, we are inclined to dissolve the marriage
solemnised on 18.10.1999 between the parties and the same is
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C.M.A. No.2811 of 2016
dissolved and the fair and decretal order dated 30.09.2016 passed by
the Family Court, Dharmapuri is set aside. Accordingly, the appeal
stands allowed. No costs.
(TRJ) (PRMJ)
26.02.2021
Index : Yes/No
vga
To
1.The Family Court, Dharmapuri.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A. No.2811 of 2016
T.RAJA, J.
and
P.RAJAMANICKAM,J.
vga
C.M.A. No.2811 of 2016
26.02.2021
https://www.mhc.tn.gov.in/judis/
