Madras High Court
M.Venkatesh vs V.Madhammal on 7 January, 2022
C.M.A.No.3463 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.3463 of 2017
M.Venkatesh ... Appellant
vs
V.Madhammal ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 19 of the
Family Courts Act, 1984 against the decree and judgment dated
04.10.2017, made in F.C.H.M.O.P. No.153 of 2017 on the file of the
Family Court, Dharmapuri.
For Appellant : Mr.C.Prabakaran
For Respondent : Not claimed
JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
The appellant has come to this Court, challenging the
correctness of the impugned decree and judgment dated 04.10.2017
passed in F.C.H.M.O.P. No.153 of 2017 by the Family Court,
Dharmapuri, dismissing the prayer for grant of divorce.
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C.M.A.No.3463 of 2017
2.Learned counsel appearing for the appellant submitted that
after the marriage was solemnised between the appellant and the
respondent on 07.03.1989 as per the Hindu rites and customs, they
were blessed with a male child, namely, Kamalesh on 02.12.1995.
When they came to Dharmapuri from Hosur, due to the matrimonial
disputes cropped up between them, the respondent left the
matrimonial home. Further, a Panchayat was held on 27.05.1998, in
which, an agreement was reached between the appellant and the
respondent, facilitating their separation and a copy of Muchalicka,
marked as Ex.P1, was filed before the Family Court, Dharmapuri,
while filing F.C.H.M.O.P. No.153 of 2017 under Section 13(1)(i-a)(i-
b) of the Hindu Marriage Act, 1955 complaining cruelty and
desertion. Learned counsel appearing for the appellant further
submitted that when the respondent parted with the appellant's
company in the year 1998, 24 long years ago by leaving the
Muchalicka in the presence of the panchayatars making it clear that
she has no interest to live with the appellant and she has been living
with another person, by name Venkatesh, the appellant should be
granted decree for divorce. Learned counsel for the appellant further
submitted that as the respondent was rightly set exparte before the
Family Court because there was no need for her to contest the case
for the simple reason that she had already appeared before the
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C.M.A.No.3463 of 2017
Panchayat and executed Muchalicka, ending the matrimonial life,
surprisingly, the Family Court, Dharmapuri, in spite of the fact that the
Muchalicka was filed as Ex.P1, which supporting the case of the appellant
that the respondent had left the appellant's company in the year 1998 and
the same was signed in the presence of the Panchayatars, erroneously
ignoring the two vital aspects, namely, that she did not come for
contesting the case and she had also executed the Muchalicka, wrongly
dismissed the prayer for divorce. Therefore, the appellant is constrained
to come to this Court.
3.There is no representation for the respondent. Despite notice, the
same has been returned to the sender with an endorsement 'not claimed'
that shows that the respondent has been evading to receive the notice.
4.We are able to see that the appellant and the respondent, having
solemnised their marriage on 07.03.1989, left their company in the year
1998 by entering into a Muchalicka between themselves in the presence
of the panchayatars at Dharmapuri. A perusal of the Muchalicka shows
that the respondent had deserted the appellant and after the panchayat
was held on 27.05.1998, she also agreed for execution of Muchalicka,
ending their matrimonial life. In spite of the same, the Family Court,
Dharmapuri, wrongly referring to Section 23(1)(d) of the Hindu Marriage
Act, which is extracted as under, has dismissed the petition filed by the
appellant:
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C.M.A.No.3463 of 2017
'(d)There has not been any unnecessary or improper delay in
instituting the proceeding.'
5.A perusal of the above provision shows that there shall not be any
unreasonable delay in the initiation of the proceedings. When both the
appellant and the respondent parted their life in the year 1998 by
executing a Muchalicka dated 27.05.1998 and the claim of the appellant
shows that the respondent has been living with another person, by name
Venkatesh, which necessitated the appellant to file a case for divorce in
the year 2017, the findings given by the Family Court, Dharmapuri,
dismissing the petition filed by the appellant for grant of divorce on the
ground of inordinate delay, are improper. Since the Muchalicka dated
27.05.1998, entered into between the appellant and the respondent in
the presence of the panchayatars, has ended the matrimonial life 24 long
years ago and the respondent, who was set exparte before the Family
Court, has not chosen to come and argue her case either by her or
through her counsel, we have no hesitation to legally dissolve the
marriage solemnised between the appellant and the respondent. When the
respondent/wife did not come forward to disprove the execution of
Muchalicka dated 27.05.1998, this Court finds no hesitation to accept the
execution of Muchalicka by both parties on 27.05.1998 before the
panchayatars. Therefore, the decree and judgment dated 04.10.2017,
made in F.C.H.M.O.P. No.153 of 2017 on the file of the
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C.M.A.No.3463 of 2017
Family Court, Dharmapuri are set aside. Accordingly, this appeal
stands allowed. No costs.
[T.R.,J.] [D.B.C.,J.]
07.01.2022
vga
Index: Yes/No
To
1.The Family Court, Dharmapuri.
2.The Section Officer,
V.R. Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3463 of 2017
T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY,J.
vga
C.M.A.No.3463 of 2017
07.01.2022
https://www.mhc.tn.gov.in/judis
