Madras High Court
V.Sindhia vs S.Robinson on 8 December, 2022
C.M.A(MD)No.868 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
C.M.A(MD)No.868 of 2019
and
C.M.P(MD)No.11488 of 2019
V.Sindhia ... Appellant/Respondent
.Vs.
S.Robinson ... Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, to call for the records of the order and decretal order passed in
I.D.O.P.No.161 of 2018 (Previously ICOP No.453 of 2014) on the file of the
learned District Judge, Family Court, Kanyakumari Division at Nagercoil and set
aside the same by allowing this present Civil Miscellaneous Appeal.
For Appellant : Mr.K.Ragatheesh Kumar
for M/s.Isaac Chambers
For Respondent : Mr.G.Aravinthan
1/8
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.868 of 2019
JUDGMENT
DR.G.JAYACHANDRAN,J.
AND
SUNDER MOHAN,J.
This Civil Miscellaneous Appeal is filed by the wife being aggrieved by the
decree of divorce passed by the Family Court, Kanyakumari at Nagercoil in
I.D.O.P.No.161 of 2018.
2. This Court, on 29.11.2019, after hearing the parties and the counsel
appearing for the respective parties and perusal of the records, has passed the
following order:-
“We have heard Mr.K.Ragatheesh Kumar, learned counsel
for Mr.P.Muthuvel, learned counsel for the petitioner and
Mr.S.R.Sathan Boopathy, learned counsel for the respondent.
2. This appeal by the wife is directed against the judgment
and decree passed in I.D.O.P.No.161 of 2018 on the file of the
learned District Judge, Family Court, Kanyakumari District at
Nagercoil.
3. The respondent / husband filed petition under Section
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C.M.A(MD)No.868 of 2019
10(x) of the Indian Marriage and Divorce Act, 1869 to dissolve the
marriage between the appellant and the respondent solemnized on
22.10.2001. Before the Family Court, the respondent / husband
himself was examined as P.W.1 and P.W.2, who was working as
Attender in a Hospital, where the appellant had taken treatment,
was also examined. On the side of the respondent / husband ten
documents were marked including medical records of the
appellant / wife. The appellant examined herself as R.W.1. The
learned Family Court, after considering the documentary evidence
has framed the following three issues:-
“1.Whether the petitioner-husband proved the plea of
cruelty against the respondent / wife?
2.Whether the petitioner is entitled for the relief of divorce
from the respondent?
3.To what other relief the petitioner is entitled?”
4. The petition was allowed holding that the appellant / wife
had treated the husband / respondent with cruelty. The learned
Family Court also took note of the fact that two minor girl
children were always under the care and custody of the respondent
/ husband. The appellant wife did not take steps even to visit
them. The respondent filed petition for declaring him as guardian
of the two minor girl children in G.W.O.P.No.150 of 2018 and the
same was allowed by an order dated 29.06.2018. It is note worthy
to state that the appellant / wife did to challenge the said order
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C.M.A(MD)No.868 of 2019
and the children are under the care and custody of the
respondent / husband.
5. Further more, we note that an Interlocutory Application
was filed in the divorce proceedings by the respondent / wife in
I.A.No.175 of 2015 seeking a sum of Rs.8,000/- per month as
interim alimony and also to pay a sum of Rs.10,000/- as litigation
expenses. Against the order passed in the said petition dated
27.06.2016, the respondent / husband filed C.R.P.(MD)No.1786 of
2016. The said petition was dismissed. The learned counsel for
the respondent / husband submitted that when the Civil Revision
Petition was pending before this Court, the learned Single Bench
of this Court had attempted for settlement between the parties.
Inspite of best efforts, no settlement was arrived at.
6. The learned counsel for the respondent / husband submit
that at this juncture, to refer the matter for mediation as requested
by the learned counsel for the appellant, is a wasteful exercise and
that the respondent / husband is not willing to participate in any
mediation proceedings except with regard to maintenance amount,
which the respondent / husband has been directed to pay in terms
of the impugned order. It is the submission of the learned counsel
for the respondent that the respondent / husband is willing to
discuss for permanent alimony to be paid in respect of the
direction issued. In other aspects, the respondent is not willing to
participate in any mediation proceedings. In the absence of the
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C.M.A(MD)No.868 of 2019
same, we cannot compel the parties to be present in mediation
proceedings.
7. Therefore, we have heard the learned counsel for the
appellant elaborately and considered the correctness of the order
passed by the learned Writ Court. In fact, the learned Family
Court in paragraph No.8 of the order has referred to an attempt
made by the Mediation Centre at Nagercoil for settlement and that
both parties had reported that they are not willing to participate in
the mediation and therefore, the case bundle was sent back to the
Court. This is the one more reason for us not to refer the matter
for Medication.
8. There is no error in the order passed by the learned
Family Court and exercising our jurisdiction under Section 19 of
the Family Court Act, we do not find any specific ground to
interfere with the order passed by the learned Family Court and
we also took note of the conduct of the appellant / wife, which we
have set out in the preceding paragraphs.
9. All these observations, would be sufficient to dismiss this
appeal. However, since the respondent / husband is willing to
attempt a mediated settlement for permanent alimony, we refer this
matter for mediation only for such purpose. In all other respects,
we uphold the order passed by the learned writ Court. In the
event, there is no settlement arrived at between the parties with
regard to the permanent alimony, the matter has to be placed
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C.M.A(MD)No.868 of 2019
before the Court and the appeal needs to be dismissed.
10. The Registry is directed to place this matter before the
Mediation Centre.”
Today when the matter is listed for further order, the failure report from the
Mediation Centre has been placed before this Court for consideration.
3. The learned counsel appearing for the appellant submitted that though
the respondent was ready to pay the lumpsum amount as permanent alimony to
the appellant, the appellant has not able to arrive at an agreement regarding the
quantum of permanent alimony.
4. In view of the above fact, since the Hon'ble Division Bench of this Court
has already observed that the appeal needs to be dismissed on merits for the
reasons stated in above referred paragraphs 6 to 9 in its order, dated 29.11.2019,
and taking note of the fact that no settlement been arrived between the parties
with regard to the permanent alimony, the appeal stand dismissed.
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C.M.A(MD)No.868 of 2019
5. It is always open to the parties, in future if they arrived at any settlement
regarding the permanent alimony, the same may be reported to the concerned
Family Court and seek for modification or alteration as provided under the
statute. No costs. Consequently, connected miscellaneous petition is closed.
[G.J.,J.] [S.M.,J.]
08.12.2022
Index : Yes / No
Internet : Yes / No
am
To
The District Judge,
Family Court,
Kanyakumari Division at Nagercoil.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.868 of 2019
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN,J.
am
JUDGMENT MADE IN
C.M.A(MD)No.868 of 2019
08.12.2022
https://www.mhc.tn.gov.in/judis
