Madras High Court
Ilayappan vs Shanmughavadivu on 10 March, 2021
C.M.S.A.No.18 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.18 of 2010
and
M.P.No.1 of 2010
Ilayappan
S/o.Ganapathy
Kattakadu Veppanatham
Varagoor Post, Attur Taluk
Salem District .. Appellant/Respondent/
Respondent
Vs.
Shanmughavadivu
D/o.Thiruvak Gounder
Teacher Garden
Manivizhunthan Colony
Attur Taluk
Salem District .. Respondent/Appellant/
Petitioner
Civil Miscellaneous Appeal filed under Section 30 of the Workmen
Compensation Act, 1923, against the judgment and decree dated 14.03.2008
passed in C.M.A.No.18 of 2007 on the file of the Additional District Court,
Salem, reversing the judgment and decree dated 27.04.2007 passed in
H.M.O.P.No.51 of 2003 on the file of the Subordinate Court, Attur.
1/14
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
For Petitioner : Mr.C.T.Mohan
For Respondent : Mr.U.Chandramohan
for Dr.P.Jagadesan
JUDGMENT
The judgement and decree dated 14.03.2008 passed in C.M.A.No.18
of 2007 on the file of the Additional District Court, Salem, reversing the
judgment and decree dated 27.04.2007 passed in H.M.O.P.No.51 of 2003 on
the file of the Subordinate Court, Attur, is under challenge in the present
civil miscellaneous second appeal.
2. The appellant/husband and respondent/wife were the
respondent and petitioner, respectively, in H.M.O.P. proceedings. The
respondent/wife filed a petition for desolation of marriage under Section
13(1)(1A) of the Hindu Marriage Act, 1955 and the said petition was
defended by the appellant/husband. The trial Court adjudicated the issues
with reference to the documents and evidences produced by the respective
parties and dismissed the H.M.O.P. on the ground that the respondent/wife
could not able to establish the cruelty with sufficient evidence.
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
3. Challenging the said judgment, the respondent/wife filed an
appeal in C.M.A.No.18 of 2007. The first appellate Court also adjudicated
the issues with reference to the documents and evidences and formed an
opinion that it is sufficient to arrive a decision that the respondent/wife
established the act of cruelty against the appellant/husband and therefore,
she is entitled for the relief of desolation of marriage.
4. Challenging the said judgment passed by the first appellate
Court, the appellant raised the following substantial questions of law in this
appeal, which reads as under:
“A) The learned appellate Court erred in
concluding that there is no chance of reunion in spite
of several judgment which has laid down that
irretrievable break down of marriage is not a ground
recognized for granting divorce?
B) Has not the lower appellate Court grossly
erred in failing to decide the case as per the
ingredients of the provisions of law regarding
marriage and divorce?
C) Has not the appellate Court erred in
basing its judgment on presumption and equity which
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
is bad in law more particularly in matrimonial cases?
D) Has not the lower appellate Court erred in
failing to discuss about the documentary evidence and
the credibility of witnesses which has expressed its
prejudicial mind?
E) Has not the lower appellate Court erred in
non appreciation and misappreciation of evidence and
documents filed in the case?
F) Has not the lower appellate Court erred in
prejudiciously relying upon the birth extract of a child
alleged to have been born to the appellant in spite of
the judgment that the birth extract could not be
sufficient to establish marriage?”
5. Heard Mr.C.T.Mohan, learned counsel for the
appellant/husband and Mr.U.Chandramohan, learned representing counsel
for Dr.P.Jagadeesan, learned counsel on record for the respondent/wife.
6. Undoubtedly, the questions of law are mostly relatable to the
factual matrix of the case at hand. However, the learned counsel appearing
on behalf of the appellant/husband reiterated that the first appellate Court
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
has absolutely failed to adjudicate the issues with reference to the
documents and evidences and by providing clear findings with reference to
the documents. In absence of such clear findings with reference to the
documents and evidences, the judgment of the first appellate Court cannot
be sustained at all.
7. It is contended that the trial Court has elaborately adjudicated
the issues and formed an opinion that the respondent/wife could not able to
establish the cruelty. While reversing the judgment, the first appellate Court
is expected to adjudicate the relied upon documents and make a finding to
arrive at a conclusion for the purpose of reversing the judgment.
8. The learned counsel for the appellant/husband relied upon the
judgment of the Supreme Court in the case of R.S.Anjayya Gupta Vs.
Thippaiah Setty1, wherein, the Apex Court made a finding that, “the first
appellate Court must analyse the entire evidence produced by the concerned
parties and express its opinion in the proper sense of the jurisdiction vested
1 Civil Appeal No. 7418 of 2009 decided on 01.07.2019
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
in it and by elucidating, analysing and arriving at a conclusion that appeal is
devoid of merit”. The said proposition has not been adopted by the first
appellate Court in the present case. Contrarily, the first appellate Court has
formed an opinion based on certain factual narrations made by the
respondent/wife and therefore, this civil miscellaneous second appeal is
liable to be allowed.
9. The learned counsel appearing on behalf of the
respondent/wife objected the said contention by stating that both the
appellant/husband and the respondent/wife are living separately for the past
about 25 years. The first appellate Court granted the relief of desolation of
marriage on 14.03.2008. However, even before that, the appellant/husband
married another woman viz., Sasikala and a female child also born to them
on 23.03.2000. The respondent/wife had filed certain documents to establish
that the appellant/husband got married to Sasikala and a female child was
also born to them and further the appellant/husband has obtained a family
card in the name of his second wife Sasikala and the voters' list also reveals
that both the appellant/husband and his second wife Sasikala were living
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
together. When the marriage became irretrievably broken down and the
appellant/husband and the respondent/wife are living separately for more
than 25 years and the respondent/wife could able to establish the fact that
the appellant was married to another woman and a female child was born to
them, whatever opinion expressed by the first appellate Court is correct and
thus, the present appeal is liable to be dismissed.
10. Admittedly, the marriage between the appellant/husband and
respondent/wife was solemnized on 24.11.1993 as per hindu rites and
custom. A female child was also born from and out of the wedlock and the
respondent/wife filed H.M.O.P.No.51 of 2003 narrating the allegations of
cruelty against the appellant/husband. Several allegations raised by the
respondent/wife were adjudicated by the trial Court. However, the trial
Court formed an opinion that the respondent/wife could not able to file any
documents to establish that the second marriage was solemnized between
the appellant/husband and Sasikala. Even marriage invitation was not
marked as a document and the place of marriage was also not stated and the
trial Court has refused to accept the birth certificate of the female child and
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
the voters' list. Further, the trial Court found that when the marriage was not
established between the appellant/husband and another women viz.,
Sasikala, the respondent/wife is not entitled to the relief of desolation of
marriage.
11. The first appellate Court also adjudicated the said documents
elaborately. The first appellate Court made a finding that the
appellant/husband has given an electric shock to the respondent/wife and
she was subjected to harassment and there was an attempt to kill her. Under
those circumstances, the respondent/wife was unable to continue her
matrimonial life and filed a petition for desolation of marriage. When there
was no attempt of reunion and the spouses were living separately for about
12 years, the first appellate Court formed an opinion that the marriage
became irretrievably broken down. The other ground raised by the
respondent/wife was also considered by the first appellate Court with
reference to the documents. The first appellate Court made a finding that the
appellant/husband was living with another woman viz., Sasikala and the
said factum was established through documents. Though the first appellate
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
Court has not mentioned the documents in the finding, those documents are
in fact filed even before the trial Court and therefore, the contention of the
appellant/husband that the first appellate Court has not given finding based
on the documents is incorrect. The first appellate Court has arrived at a
conclusion that the trial Court has not considered those documents, which
can be relied upon. Under those circumstances, the judgment of the trial
Court was set aside by the first appellate Court.
12. This Court has also gone into the documents relating to the
second marriage of the appellant/husband with Sasikala and a female child
born to them.
13. Ex-P2 dated 18.03.1996 is a copy of the letter sent by the
respondent/wife to her parents. The said letter reveals that the
respondent/wife was subjected to harassment. Ex-P4 dated 23.04.1996 is
also a copy of the letter sent by the respondent/wife to her parents, wherein,
the respondent elaborately narrated the harassment caused to her by the
appellant/husband. Ex-P6 dated 28.04.1996 is the C.S.R. copy issued by the
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
police. It is relevant to consider the document Ex-P13, which is the birth
certificate of a female child born to the appellant/husband and Sasikala
dated 23.03.2000. A perusal of the said birth certificate reveals that the
certificate was issued by the Registrar (Birth and Deaths), Salem City,
Salem Municipal Corporation, on 20.04.2000. Accordingly, the female child
was born on 23.03.2000 at Sri Gokulam Hospital, Meyanur, Salem, and the
name of the father is Ilayappan and the name of the mother is Sasikala. Ex-
P16 is the family card dated 07.12.2005. The family card also reveals that
the wife of the said Ilayappan is Sasikala. Ex-P17 is the family card A-
Register, wherein, the name of the appellant/respondent is entered. Ex-P18
is the voters' list dated 07.12.2005, which reveals that the name of the
appellant/husband is found in Serial No.814 and the name of the said
Sasikala is found in Serial No.817, wherein, it is stated that her husband
name is Ilayappan. Relying on these documents, the first appellate Court
arrived at a conclusion that the appellant/husband is living with another
woman, though the marriage certificate or marriage invitation has not been
marked as documents.
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
14. This Court is of the opinion that the marriage was
solemnized or not, the fact remains that the birth certificate of a female child
dated 23.03.2000 as well as the family card and the voters' list reveals that
the appellant/husband Ilayappan and Sasikala were living together. Even if
the marriage was solemnized between Ilayappan and Sasikala, the marriage
cannot be treated as a valid marriage, as during the relevant point of time
i.e., in the year 2000, the marriage between the appellant/husband and the
respondent/wife was not desolated. When the marriage with the
respondent/wife was in subsistence, the marriage, if at all solemnized with
Sasikala, cannot be considered as a valid marriage. However, the fact
remains that a female child was born to the appellant/husband and Sasikala.
Thus, the finding of the trial Court that the respondent/wife has not filed the
marriage invitation or any proof of marriage, became unnecessary and
cannot have relevancy as far as the petition for desolation of marriage
between the appellant/husband and the respondent/wife is concerned. The
very fact that the appellant was living with another woman viz., Sasikala,
right from the year 2000 or prior to that and a female child also born and
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
further the appellant/husband and the respondent/wife are separately living
for about 25 years, there is no reason to interfere with the findings of the
first appellate Court at this length of time and in the interest of both the
parties to have a peaceful life, this Court is not inclined to reverse the
findings of the first appellate Court, as the findings of the trial Court was
rightly reversed.
15. Accordingly, the judgment and decree dated 14.03.2008
passed in C.M.A.No.18 of 2007 reversing the judgment and decree dated
27.04.2007 passed in H.M.O.P.No.51 of 2003, stands confirmed. As a
sequel, this civil miscellaneous second appeal is dismissed. No costs.
Connected M.P. is closed.
10.03.2021
Index: Yes/No
nsd
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
To
1.The Additional District Judge,
Salem.
2.The Subordinate Judge,
Attur.
https://www.mhc.tn.gov.in/judis/
C.M.S.A.No.18 of 2010
S.M.SUBRAMANIAM, J.
nsd
C.M.S.A.No.18 of 2010
10.03.2021
https://www.mhc.tn.gov.in/judis/
