M.Thiruppugal vs Geetha @ Geetha Ebenezar
2021 Latest Caselaw 22848 Mad

                                                                                   C.M.A.No.3816 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 23.11.2021

                                                       CORAM :

                                       THE HON'BLE MR.JUSTICE T.RAJA
                                                          AND
                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY


                                                  C.M.A.No.3816 of 2019

                M.Thiruppugal                                      ... Appellant
                                                         Versus

                Geetha @ Geetha Ebenezar                                     ... Respondent

                Prayer : Civil Miscellaneous Appeal has been filed under Section 55 of Indian
                Divorce Act, to set aside the fair and decretal order of the learned Principal
                District Judge, Tirupur, dated 03.12.2018 in D.O.P.No.78 of 2013 and allow
                the above C.M.A.

                                  For Appellant      : Mr.M.Vijayakumar

                                  For Respondent     : No Appearance

                                                      JUDGMENT

(Judgment of this Court made by Mr.Justice D.Bharatha Chakaravarthy)

This Civil Miscellaneous Appeal is filed by the husband namely,

Thiruppugal, aggrieved by the fair and decretal order passed by the learned

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C.M.A.No.3816 of 2019

Principal District Judge, Tirupur, dated 03.12.2018 in D.O.P.No.78 of 2013,

whereby the petition for divorce filed by the husband on the ground of cruelty

and desertion, praying to dissolve the marriage between himself and the

respondent/wife namely, Geetha @ Geetha Ebenezar, dated 08.07.2002, under

Section 10(ix) and 10(x) of the Indian Divorce Act, 1869 is dismissed.

2. The case of the petitioner is that, the petitioner and the respondent are

Christians and on 08.07.2002, the marriage was performed at C.S.I Church,

Udumalaipettai, as per Christian rites. A few months after the marriage, the

respondent/wife started behaving indifferently. Thereafter, on 22.06.2003, a

male child namely, Pradeep was born to them. After the birth of the child, the

behaviour of the respondent/wife changed further and it appeared as if she was

psychologically affected. The said behaviour which was abnormal, amounts to

cruelty according to the husband. Specifically, he has pleaded that the

respondent/wife used to lock herself inside one room and will not allow others

to come into the room and touch her things. On one occasion, when the water-

filter she was using had ants in it, she found fault with the petitioner's mother

and she abused her in a disrespectful and filthy language, slapped her

repeatedly on her cheeks. Again, in another incident, when she opened the dhal

packet procured by petitioner's 73 year old father, and when she found that it https://www.mhc.tn.gov.in/judis

C.M.A.No.3816 of 2019

was infested with insects, she verbally abused him and cursed him that he shall

better die. When this behaviour was complained to the respondent's parents,

they asked him to adjust with the behaviour stating that hysteria patients will

behave likewise. While so, in the year 2011, unilaterally, she got the transfer

certificate of his son and admitted him in a school, Udumalaipettai and started

living with her parents. Inspite of his repeated demands, the respondent is not

willing to come and live with the petitioner. Therefore, he issued a legal notice

on 25.05.2011 and since the respondent/wife has deserted him for a period of

two years, preceding the filing of the divorce petition and since her action

amounted grave mental cruelty, he prays for dissolution of the marriage.

3. The respondent/wife filed counter and resisted the said application. It

is her submission that the specific incidents of cruelty mentioned in the petition

are a figment of imagination and those incidents never happened. It is her case

that at all times, she wanted to live with the petitioner. If the petitioner permits,

she is ready to join him in the marital life. She still likes and loves her husband.

She cannot even think of separation from her husband. It is the case of the

respondent that the petitioner never took his carreer seriously and was all the

time roaming in motor bikes and was not properly earning and did not give any

money for the family. Under these circumstances, in the year 2011, during https://www.mhc.tn.gov.in/judis

C.M.A.No.3816 of 2019

summer vacation, when the respondent went to her parent's house along with

her son, the petitioner demanded Rs.10,00,000/- and made a condition that if

only the respondent brings Rs.10,00,000/-, he will take her back. Only because

of the same, she was forced to live with her parents along with her son. In the

best interests of her son she was forced to admit him in a school in

Udumalaipettai. Even thereafter, the husband used to visit Udumalaipettai, met

them regularly and he also felt it convenient as the child continued to study in

Udumalaipettai.

4. On the above pleadings of the parties, since there was no any amicable

resolution between the parties, the Family Court had no other option than to

proceed with the trial. On behalf of the petitioner, the petitioner examined

himself as P.W.1 and his mother, Daisy as P.W.2. The copy of the wedding

invitation was marked as Ex.A1, the birth certificate of the petitioner's son,

Pradeep, is marked as Ex.A2. Copy of the family ration card for the years 2005

-2009 has been marked as Ex.A3. The legal notice, caused by the petitioner is

marked as Ex.A4 and the acknowledgement card as Ex.A5. On behalf of the

respondent, the respondent/wife examined herself as R.W.1 and one Mallika as

R.W.2.

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C.M.A.No.3816 of 2019

5. The Trial Court, upon consideration of the evidence on record, found

that the allegations of cruelty were not proved and P.W.2, the mother of the

petitioner, in the cross-examination, had admitted that the respondent/wife was

doing all the cooking along with her and was leading a family life. In fact, she

had chided her son for scolding her daughter in law. Even after the year 2011,

several times, her daughter-in-law came home willing to join, but, it is only her

son, who sent her back. From her evidence and considering the cross-

examination of the petitioner, came to the conclusion that there was no cruelty

and the respondent was behaving like any other dutiful wife, mother and

daughter-in-law. On the ground of desertion, the Trial Court found that only

because she was forced to leave the house, the respondent/wife is living

separately and even then the appellant/husband was visiting them during his

son's holidays and they are in regular touch. The petitioner's mother has also

admitted that her daughter-in-law made attempts repeatedly to come home and

join together. Based on this evidence coupled with the categorical assertion of

the wife in the counter affidavit as well as in the evidence that she is always

willing to live with the petitioner, the Trial Court came to the conclusion that the

allegations of cruelty and desertion are not proved and there is a bright chance

for the petitioner and the respondent to live together and lead a normal marital

life in their own interests and in the interests of their minor child, and finally https://www.mhc.tn.gov.in/judis

C.M.A.No.3816 of 2019

dismissed the D.O.P.No.78 of 2013, by the judgment under the appeal, dated

03.12.2018.

6. Heard Mr.M.Vijayakumar, learned Counsel for the appellant. The

learned Counsel for the appellant took us through the pleadings and submitted

that specific incidents of cruelty have been pleaded and P.W.1 has deposed to

prove the said allegations. From the examination of parties, the admitted case of

the parties that they are not living together from 2011 April. The petitioner had

waited two years after the desertion of the respondent and then filed the petition

for divorce on 19.08.2013 and now, for a period of about ten years, they are not

living together. Therefore, this Court should interfere in the reasonings of the

Trial Court and as a result, the petition has been filed by the husband seeking

decree of divorce should be allowed.

7. Notice was served on the respondent. There is no appearance on

behalf of the respondent, inspite of opportunities and therefore, this Court

proceeded to hear the appellant on merits, in the absence of the respondent/wife.

8. After perusing the oral and documentary evidences placed before us,

we have framed the following issues for adjudication:- https://www.mhc.tn.gov.in/judis

C.M.A.No.3816 of 2019

(i) Whether the husband has made out a case for dissolution of the marriage?

(ii) Any other relief?

9. Upon careful consideration of the arguments of the learned Counsel

for the petitioner and upon going through the material evidence on record, we

are of the opinion that the so called specific incidents of cruelty are absolutely

vague without any particulars. Even the approximate time, date etc., of the

alleged cruelty have not been mentioned or pleaded anywhere. Further, a

perusal of the allegation, words alleged to have been spoken and the deeds said

to have been committed for the alleged circumstances does not inspire our

confidence, hence, we are unable to accept the same. Learned Trial Court, after

taking note of the admission of P.W.2-mother of the appellant/husband about

the good qualities of her daughter-in-law and the deposition of the

respondent/wife that only her husband had sent her back, but, they are meeting

frequently and that she is ready and willing to live with her husband, held that

there is no reason for granting divorce. This apart, the further allegations about

the hysteric behaviour, as found by the Trial Court, first, there is lack of proof

and second, even as per the allegation, the said behavioural problem started on

account of the pregnancy and child birth, in which case, the meritless allegation

cannot be treated as a ground for mental cruelty on the petitioner husband. https://www.mhc.tn.gov.in/judis

C.M.A.No.3816 of 2019

Therefore, we agree with the finding of the Trial Court that the husband has

failed to prove the allegations of cruelty.

10. Similarly, when the wife has given an acceptable explanation for

living in her parent's house, coupled with the evidence of P.W.2-mother of the

appellant/husband that even after separation, she repeatedly tried to join her

husband and it is only the petitioner, who is not willing to take her back and the

further facts of the appellant/husband visiting them in his in-laws' house and

they are still in touch would prove that the family bond is alive and subsisting

between the parties and in view of continuous meeting and visiting of the

parties, there is no desertion by the respondent/wife. The tenor of the counter

affidavit and the oral evidence of the respondent/wife in expressing that still she

likes the appellant/husband and that she always was and is ready to live with

him, has been rightly accepted by the learned Trial Judge. Therefore, we find

no merits in this appeal and we reject the submissions of the learned Counsel

for the appellant for the reasons stated supra.

11. Accordingly, this Civil Miscellaneous Appeal stands dismissed.

However, there shall be no order as to costs.

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C.M.A.No.3816 of 2019

(T.R.J.,) (D.B.C.J.,) 23.11.2021 Index : yes/no Internet : yes/no Speaking/Non-Speaking order

grs

To

The Principal District Judge, Tirupur.

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C.M.A.No.3816 of 2019

T.RAJA, J.

AND D.BHARATHA CHAKRAVARTHY, J.

grs

C.M.A.No.3816 of 2019

23.11.2021

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