Madras High Court
Dasan Wellington Bestas vs Sahaya Ithal Rose on 14 December, 2022
C.M.A.(MD)No.1043 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD)No.1043 of 2006
and
M.P.(MD)No.1 of 2013
Dasan Wellington Bestas,
S/o.N.Xavier Thangaraj ... Appellant
vs.
Sahaya Ithal Rose,
D/o.J.Kasidurai Nadar ... Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 55 of the
Indian Divorce Act, 1869 read with Order 41 of the Civil Procedure Code, against
the judgment and decree, passed in I.D.O.P.No.10 of 2005, on the file of the
Additional District Court, Tirunelveli, dated 18.03.2006.
For Appellant : Mr.M.P.Senthil
For Respondent : Mr.S.Sivathilakar
JUDGMENT
This Civil Miscellaneous Appeal is filed by the husband being aggrieved
by the dismissal of his divorce petition filed under Section 10(1)(ix) of the Indian
Divorce Act.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1043 of 2006
2. The brief facts of the case is that the appellant married the respondent on
13.09.2000 at Thisayanvilai as per Christian Customary practices. The
matrimonial home was set up at the husband's house. Alleging that his wife was
not inclined to share the matrimonial life and withdrawn his companionship and
used to live separately, there was discard between them and she left the
matrimonial home to stay along with her parents and attended her job. All the
attempts for re-union failed and therefore, waiting for more than three years
without any cohabitation, the petition for divorce has been filed. The said
Petition was contested by the respondent claiming that at the time of marriage, the
appellant [husband] was employed in Tharangathara Chemicals, Arumuganeri, as
Contractor. The respondent was working as a Teacher in R.C. Management
Primary School, Anthoniyarpuram, Thisaiyanvilai. Since the matrimonial home
at Adaikalapuram is nearly 90 Kilometers away from her work place, she and the
elders decided to settle their matrimonial home at Thisayanvilai. Accordingly, a
separate home was established at Thisayanvilai and she was happily living with
the appellant. While so, in the month of May 2004, they purchased a house site at
Thisayanvilai and planned to construct a house. There was a difference of
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C.M.A.(MD)No.1043 of 2006
opinion between the husband and wife regarding the mode of construction of the
house. Hence, she got separated from her husband and started living with her
parents. There was no issue to them from the wedlock, which also provoked her
husband to make all sorts of allegations against her and led to file a frivolous
petition for divorce on the instigation of his parents. Claiming that she never
deserted her husband and always ready to live with him, she strongly opposed the
divorce petition.
3. Before the trial Court, the parties entered the witness box and deposed.
The Marriage Invitation was marked as appellant's side document, no other
documents were relied by the parties. The respondent was examined in chief, but
the appellant failed to cross-examine the respondent and took adjournment. The
Court granted adjournment imposing cost, but the cost was not paid and therefore,
the evidence of R.W.1 was closed and based on the available material, the trial
Court dismissed the divorce petition on the ground that the appellant has failed to
establish wilful desertion for more than two years.
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C.M.A.(MD)No.1043 of 2006
4. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed.
Along with the appeal, an application to receive the additional document is also
filed.
5. Heard the learned counsel for the appellant as well as the respondent and
perused the material available on record.
6. The appellant herein as the petitioner before the trial Court has alleged
that the respondent wilfully withdrawn from the conjugal relationship and living
separately since May 2004. The fact is also admitted by the respondent in her
counter. The petition for divorce is filed on 09.08.2004, re-presented on
07.01.2005 and taken on file subsequently, assigning I.D.O.P.No.10 of 2005.
7. From the material on record, this Court finds that though the separation
is admitted, the cause for separation is disputed. Even after lapse of 18 years from
the date of separation, there is no sign of re-union or mutual separation. The
matter is pending before this Court since 2006. The attempt to reconcile the
parties has also been made. Though the matter has been referred to Mediation
and Conciliation Centre, this Court has received only a failure report.
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C.M.A.(MD)No.1043 of 2006
8. The learned counsel for the respondent submitted that the respondent is
always ready to join with the appellant, but the appellant is adamant in accepting
her.
9. In the light of the above submissions, it is necessary to look into the
Miscellaneous Petition filed by the appellant to receive the additional document,
which indicates that pending appeal, some complaints have been given to the
Police by the mother of the appellant and counter complaint by the respondent.
Therefore, there is no scope for re-union and prolonged separation by the
issueless couple itself constitutes a ground for divorce. In this case, going by the
averments made in the counter filed by the respondent, it appears that there was a
dispute between the spouses regarding the mode of construction of the house in
Thisaiyanvilai, which has led to their separation. The respondent is adamant
enough not to join with her husband reproaching the peace. Though the appellant
has not come out with any specific date of separation and the respondent in her
counter says from May 2004, they are living separately, and till date, they have
not legally separated even after lapse of 18 years, it will be meaningless to retain
the marital relationship on paper when both the appellant and the respondent are
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C.M.A.(MD)No.1043 of 2006
gainfully employed and there is no financial, physical or emotional dependency to
each other and the spouses have mentally got separated and have chosen their
independent life. In the said circumstances, it is futile to keep the marital
relationship only on paper. Hence, this Civil Miscellaneous Appeal is allowed
and the judgment and decree of the trial Court is set aside. The appellant is
entitled to decree for divorce as prayed for. No costs. Consequently, connected
Miscellaneous Petition is closed.
Index : Yes / No 14.12.2022
Internet : Yes
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To
1.The Additional District Judge,
Tirunelveli.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1043 of 2006
DR.G.JAYACHANDRAN, J.
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JUDGMENT MADE IN
C.M.A.(MD)No.1043 of 2006
DATED : 14.12.2022
https://www.mhc.tn.gov.in/judis
