Madras High Court

Dr.P.Veerapandiyan vs Dr.Kasthuri on 29 January, 2021

                                                                                 C.M.A.No.1908 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    RESERVED ON : 24.08.2021

                                                   PRONOUNCED ON : 02.09.2021

                                                            CORAM

                        THE HONOURABLE MR.JUSTICE K. KALYANASUNDARAM
                                             and
                           THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

                                                   C.M.A.No.1908 of 2021

                   Dr.P.Veerapandiyan                                                 ... Petitioner
                                                            Vs.

                   Dr.Kasthuri                                                         ...Respondent

                  PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family

                  Court Act to set aside the Judgment and Decree passed by the Learned

                  Principal         Sub-Ordinate    Judge    (Family   Court),    Tiruvannamalai       in

                  H.M.O.P.No.37 of 2020 dated 29.01.2021.

                                         For petitioner           : Mr.R.Manickavel
                                         For Respondent           : Mr.A.Arulmozhi

                                                     JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant-

husband, being aggrieved by the judgment and order dated 29.01.2021 in

H.M.O.P.No.37 of 2020 passed by the Family Court, Tiruvannamalai.

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C.M.A.No.1908 of 2021

2.The appellant-husband is a Doctor and the respondent-wife is

also a Doctor by profession. The marriage between the appellant and the

respondent was solemnized on 22.02.1977 at Thirupathur in Vellore District.

On 21.11.1979, a male child was born to them and unfortunately the child

died due to Phenumonia at CMC Hospital, Vellore. On 03.05.1981, a female

child, viz., Vinodhini was born. Now she is also become a Doctor.

3.The appellant-husband filed a petition in H.M.O.P.No.37 of

2020,seeking dissolution of marriage on the ground of cruelty and desertion,

under Section 13(A) (ii)(iii)(viii) of the Hindu Marriage Act, 1955. The

respondent filed counter and contested the proceedings and denied all the

allegations made by the appellant-husband in the petition and also made

allegations that the appellant-husband is having illicit relationship with his

nurse, viz., Vijayageetha @ Rohini and further alleged that the appellant was

responsible for the separation, which took place between them.

4.The learned trial Judge after considering the oral and

documentary evidence, dismissed the petition on the ground that the

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C.M.A.No.1908 of 2021

appellant-husband failed to establish the grounds for dissolution of marriage,

which was challenged before this Court by way of this Civil Miscellaneous

Appeal.

5.The learned counsel for the appellant submitted that the appellant

is living separately from the year 2006. On 14.06.2010, he issued legal notice

to the respondent - wife, since good part of the life of both had been spent

separately and the marriage relationship between both having irretrievably

broken down and there is no chance for re-union. He would further submit

that there was complete break down of the marriage, due to the attitude of the

respondent - wife and the appellant- husband was under severe mental agony

and that the various acts committed by the respondent amounted to mental

cruelty. Further, the respondent – wife tutored her daughter-Vinodhini as

against the appellant and she also has not turned to her father. Unfortunately,

the trial Court has failed to consider these aspects and simply dismissed the

petition and committed an error. Thus, the learned counsel for the appellant

pleaded to allow this appeal.

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C.M.A.No.1908 of 2021

6.The learned counsel for the respondent supported the order of the

learned trial Judge and further contended that the learned trial Judge passed

the order on the basis of the oral and documentary evidence adduced by both

the parties. Hence,the order passed by the learned trial Judge needs no

interference at the hands of this Court. Further, the allegations raised by the

appellant in the petition was not proved, but the counter allegation that the

appellant is having illicit relationship with his nurse, viz., Vijayageetha @

Rohini and he is living with her has been well established through Ex.R.1

and thus, the learned counsel for the respondent pleaded to dismiss this

appeal.

7.Heard the learned counsel for the parties and perused the

materials available in the record.

8.We have gone through the pleadings of the appellant before the

trial Court. On perusal of the pleadings, it is found that the appellant failed to

mention when the respondent had deserted him. In paragraph 17 of the

pleadings, he failed to mention the cause of action as when his wife deserted

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C.M.A.No.1908 of 2021

him, which runs as follows:-

"The cause of action for this petition arose at Tirupattur

on 22.02.1977, when the marriage between the petitioner

and the respondent took place, when a male child was

born and died, when daughter-Vinodhini was born, who

is following the footsteps of the respondent, on all the

dates when mental torture and physical cruelties were

caused to the petitioner and ill-treatments meted out on

him, on all dates when mediation efforts failed, and at

Chengam Town, within the jurisdiction of this Hon'ble

Court".

9.On perusal of the evidence adduced by the appellant, it is found

that he had not clearly mentioned that when his wife deserted him and

further, there is no evidence in respect of the allegation of mental cruelty

caused by the respondent to him. Only strange allegations are available in the

petition. As per Section 13(A) (ii)(iii)(viii) of the Hindu Marriage Act, 1955,

the marriage can be dissolved by a decree of divorce on a petition presented

either by the husband or the wife on the ground that the other party, after

solemnization of the marriage treated the other party with cruelty and also if https://www.mhc.tn.gov.in/judis/

C.M.A.No.1908 of 2021

deserted voluntarily without any reason. Though the appellant-husband

contended that his wife left him, he failed to give any evidence when she left

him and deserted him. Further, what are all the efforts taken by him to bring