Madras High Court
D.Rachel Malini vs S.Israel on 5 December, 2022
C.M.A.(MD) No.898 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HON'BLE MR JUSTICE SUNDER MOHAN
C.M.A(MD)No.898 of 2015
and
M.P(MD)No.1 of 2015
D.Rachel Malini ... Appellant/Respondent
.Vs.
S.Israel ... Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of Family
Court Act, to allow this appeal and to set aside the impugned fair and
decreetal order passed by the learned Family Judge, Madurai in I.D.O.P.No.
4 of 2006, dated 26.02.2014 and dismiss the same.
For Appellant : Mr.N.Dilip Kumar
For Respondent : No appearance
1/7
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.898 of 2015
JUDGMENT
DR.G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
The appellant is the respondent in I.D.O.P.No.4 of 2006. She got
married to one S.Israel on 19.05.1997 as per Christian Rites and Customs.
Both are working. Even after few years of marriage, the appellant could
not conceive due to gynaecological issues and the same has been well
discussed by the trial Court and established through exhibits. As the days
passed, the spouse lost compatibility.
2. Alleging that, the appellant has lost interest in the marriage and
sexual relationship and refrained herself from cohabitation for more than
two years due to her mental disorder, the respondent herein filed a petition
for divorce under Section 10(1)(iii)(vii) (ix)(x) of the Indian Divorce Act.
3. The above allegations were denied by the appellant and also a
counter allegation was alleged that her husband had developed intimacy
with one of his student.
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C.M.A.(MD) No.898 of 2015
4. The parties entered into the witness box, marked exhibits. An
Advocate Commissioner was appointed by the Court and he was examined
as a Court witness. The report of the Psychologist Dr.Rawlin Chinnian was
marked as Court exhibit.
5. The trial Court, after appreciating the evidence placed before it,
held that the respondent herein/petitioner has established that his wife
suffers some sort of mental depression and her act has caused mental
cruelty to him and they are living separately for more than 7 years and no
steps have been taken for reunion and also inferring that her contact does
not indicate that she had an intention to reunite her husband, the petition
was allowed, granting divorce by dissolving the marriage solemnized on
19.05.1997.
6. The learned counsel appearing for the appellant passionately
argued that the respondent herein, who was not loyal to the wife, had
developed intimacy out side the wedlock, made uncharitable allegation of
mental illness and also had advantage of dissolution of marriage on the
said ground. The learned counsel for the appellant referring to Ex.C2,
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.898 of 2015
which is a report of Dr.Rawlin Chinniah, Psychologist, submitted that the
petitioner/respondent herein infact had developed passionate love affair
with the girl and that has abruptly come to an end due to the intervention
of the girl's parents. Further, by relying upon the photographs marked as
Ex.R8 and Ex.R9, the learned counsel for the appellant would submit that
the petitioner/respondent herein cannot have the premium for his extra
marital affair and get a divorce on the false ground.
7. This Court, after considering the medical reports and the
Psychiatrist report of Rawlin Chinniah, marked as Ex.C2, finds that the
parties are not interested in restoring their marital relationship. As far as
the psycho diagnostic profile of the appellant is concerned, it indicates that
she suffers Bipolar mood disorder. Physiological impediment for begotting
the child or psychological treatment for Bipolar mood disorder, are not a
ground for granting divorce. However, taking note of the fact that
marriage took place in the year 1997 and got separated in the year 2005,
till date, they have not able to fix their (the spouse) future and ascertain
their marital status, even though the trial Court granted a decree of
divorce on 26.02.2014.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.898 of 2015
8. Since the present appeal is pending before this Court for the past
8 years, this Court is of the view that the parameter laid down by the
Hon'ble Supreme Court in paragraph 101(xiv) in Samar Ghosh vs. Jaya
Ghosh reported in 2007 (4) SCC 511 squarely applies to this case. To be
more explicit, the said parameter of the Hon'ble Supreme Court, is
extracted below:-
“101(xiv) Where there has been a long period of
continuous separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage becomes a
fiction though supported by a legal tie. By refusing to sever that
tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings
and emotions of the parties. In such like situations, it may lead
to mental cruelty.”
9. For the said reason, this Court is not inclined to interfere with the
order of the trial Court, dissolving the marriage and decree of divorce and
the same is confirmed on the sole reason that the long period of continuous
separation between the spouses shows that the matrimonial bond has been
broken long back and cannot be retrieved further.
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C.M.A.(MD) No.898 of 2015
10. In view of the above, this Civil Miscellaneous Appeal is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
[G.J.,J.] [S.M.,J.]
05.12.2022
Index : Yes / No
Internet : Yes / No
am
To
The Family Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.898 of 2015
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN,J.
am
JUDGMENT MADE IN
C.M.A(MD)No.898 of 2015
05.12.2022
https://www.mhc.tn.gov.in/judis
