Madras High Court
P.Balaji vs Iswarya on 8 December, 2022
C.M.A(MD)No.1038 of 2016
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.1038 of 2016
P.Balaji ... Appellant/Petitioner
.Vs.
Iswarya ... Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, 1984, to set aside the judgment and decree in H.M.O.P.No.161 of
2015, dated 29.01.2016 on the file of the Family Court, Trichy and allow the
appeal.
For Appellant : Mr.S.Anandchandrasekaran
for Mr.L.Siva
For Respondent : Mr.M.A.M.Raja
1/7
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1038 of 2016
JUDGMENT
DR.G.JAYACHANDRAN,J.
AND
SUNDER MOHAN,J.
Heard the learned counsel appearing for the appellant and the learned
counsel appearing for the respondent.
2. The appellant being aggrieved by the dismissal of the divorce petition is
before this Court stating that his wife, the respondent herein, has caused cruelty
and desertion and further suppressed the incurable hirsutism which is caused due
to harmonic imbalance and hence, he is entitled to dissolve the marriage.
3. However, the trial Court after considering the evidence has dismissed the
divorce petition stating that the petitioner/appellant herein has failed to prove the
wilful desertion and the alleged cruelty.
4. In the grounds of appeal, it is contended that the trial Court erred in
appreciating the medical records produced by the appellant to prove that the
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C.M.A(MD)No.1038 of 2016
respondent has been suffering from disease of Hirsutism which have the effect of
change in the gender character of a person. Due to this disease, the respondent
has started developing male character. While so, suppressing the said disease, she
was given in marriage to him and on noticing that, she voluntarily withdrew the
matrimonial company and deserted him.
5. However, the learned counsel for the respondent would submit that the
respondent had undergone cosmetic surgery at Devadoss Multi Speciality
Hospital and the excessive hair growth over the chin has been treated with laser
for permanent hair removal and she is not suffering with hirsutism. This medical
certificate was marked as Ex.R4. Furthermore, the counsel for the respondent also
relied upon the photographs marked as Ex.R1 and Ex.R2 taken during baby
shower ceremony, in which, the mother and sister of the appellant had
participated and therefore, submitted that the trial Court has rightly considered
the evidence and dismissed the divorce petition filed by the appellant and there is
no error in the said judgment to interfere.
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C.M.A(MD)No.1038 of 2016
6. The evidence indicates that the appellant and the respondent married on
29.10.2007. Her son was born to them on 27.01.2009. Even prior to the birth of
the son, the respondent has gone to her parental house for delivery and since
20.08.2008 spouse have not reunited due to the escalation of misunderstanding
between them.
7. From the averments made by the respective counsel and through the
records, this Court finds that the respondent has filed a petition for maintenance
before the Family Court, Trichy and receiving maintenance for herself and her
minor son. A Domestic Violence proceedings has also been initiated against the
appellant and the same is pending since 2019. Pursuant to the protective order in
the Domestic Violence proceedings, the respondent is occupying a portion of the
residential house owned by the appellant.
8. This Court, after considering the material and the long separation for
more than 14 years, though the spouses are living in same building, finds that
there is no possibility of reunion. Allegation of retaining the jewels by the
appellant and counter allegation saying that the appellant has developed extra
matrial relationship makes the possibility of reunion remote.
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C.M.A(MD)No.1038 of 2016
9. In the said circumstances, this Court weighed the balance of convenience
and the merit on either side though it appears that granting divorce may
tantamount to the giving premium for the husband, who suffers decree of
restitution of conjugal rights and also lost his petition for divorce.
10. However, taking into view of the overall social perspective and the
welfare of the minor boy who is living with her and have no interest in his father
except to receive the maintenance, the prolonged separation even though there
was every opportunity to reunite not been explored or attempt by either of the
parties renders their marriage broken irretrievably and reached no point of return.
Allowing the spouses without severing their matrimonial relationship will only
cause certain extramarital relationship and lead to immoral and illegal
consequences. At least to put an end to such consequences, taking note of the
prolonged separation for more than 14 years, this Court dissolve the marriage.
11. All other remedy available under the law for the respondent can be
resorted to in accordance with law. Dissolving the marriage by decree shall not
stand in the way of the respondent to get necessary legal protection under the law.
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C.M.A(MD)No.1038 of 2016
12. Accordingly, the marriage between the appellant and the respondent
solemnised on 29.10.2007 is hereby dissolved. This Civil Miscellaneous Appeal
is allowed. No costs.
[G.J.,J.] [S.M.,J.]
08.12.2022
Index : Yes / No
Internet : Yes / No
am
To
The Family Court,
Trichy.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1038 of 2016
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN,J.
am
JUDGMENT MADE IN
C.M.A(MD)No.1038 of 2016
08.12.2022
https://www.mhc.tn.gov.in/judis
