Madras High Court

Veeramani vs Ezhilkani on 18 October, 2022

                                                                                           CMSA.No.34 of 2016


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 18.10.2022

                                                            CORAM

                                    THE HONOURABLE MS. JUSTICE P.T.ASHA

                                                     CMSA.No.34 of 2016


                     Veeramani
                                                     ... Appellant/Petitioner/Petitioner

                                                               Vs.
                     Ezhilkani
                                                 ... Respondent /Respondent/ Respondent



                     PRAYER : Appeal filed under Section 28 of Hindu Marriage Act, 1955 read

                     with Section 100 of the CPC to set aside the order passed in CMA No.8 of

                     2015 on the file of the Principal District Judge, Perambalur dated 04.06.2016

                     by confirming the order in HMOP No.61 of 2009 on the file of the

                     Subordinate Judge, Perambalur.

                                    For Petitioner       : M/s.J.Sudharakaran
                                    For Respondent        : Mr.G.Shankar




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                                                                                       CMSA.No.34 of 2016


                                                         JUDGEMENT

The husband who has lost in both the Courts below is the appellant

before this Court. The facts in brief which has culminated in the filing of the

above CMSA is herein below narrated.

2. The appellant had filed HMOP.No.61 of 2019 on the file of the Sub

Court, Perambalur seeking divorce on the ground of cruelty. In his petition

filed in support of the divorce petition the appellant would contend that the

marriage between him and the respondent was solemnized on 23.12.2001 and

the marriage was a love marriage. After the marriage, the petitioner and

respondent live happily for about 7 years and out of this wedlock they have

been blessed with a son Sudarshan. The appellant is a teacher by profession

and has worked at several places he would stay in the places to which he was

posted. It is his case that his wife, the respondent herein suspected his

character and would pick up quarrel with the appellant on trivial matters. The

appellant put up with these pin pricks only taking into account the well being

of his son. The respondent used to quarrel with the petitioner and leave her

the matrimonial home in respect of which, several panchayats were held. In

one such panchayat, the respondent and her family members had abused the

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appellant and his family members using un-parliamentary words. On

22.10.2008, the respondent had quarreled with the appellant stating that the

petitioner was in an illicit intimacy with several women. She had beaten up

the petitioner with a wooden log on his head and attempted to commit

suicide. Thereafter, on 12.02.2009, at about 6 p.m. once again the respondent

and her father had intimidated the appellant and unable to bear the ill

treatment and harassment, caused by them, the petitioner had attempted to

commit suicide on two occasions. Therefore, it is not possible for the

appellant to continue co-habitation with the respondent and consequently he

sought for divorce on the ground of cruelty.

3. The respondent on entering appearance had filed a counter denying

each and every allegations contained in the petition. It is her case that the

appellant had demanded a sum of Rs.50,000/- and 5 Sovereigns of Gold as

dowry on the instigation of his parents and since that had not been given they

had started harassing her. The appellant was living in the house of one

Dharmalingam and had totally ignored his family. He was also in a

relationship with the daughter of the said Dharmalingam and he had borrowed

a sum of Rs.3,50,000/- from the State Bank of India without the respondent’s

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knowledge and given this amount to Dharmalingam. When the respondent

had questioned the same, he had started ill-treating her and had demanded

dowry.

4. The respondent would submit that when she had approached her in-

laws to inform about this illicit intimacy of her husband with the daughter of

Dharamalingam, her in-laws informed her that they were keen on solemnizing

the 2nd marriage for their son and they started harassing the respondent. On

23.04.2009, at about 10.pm one Devarasu came to the respondent’s parents

house where she was staying. He thereafter, started abusing the petitioner

with filthy language and outraged her modesty by pulling her saree and he

had also threatened to kill the respondent. All of these had been done only on

the instructions of the appellant. The appellant and his parents were harassing

the respondent to give her consent for his 2nd marriage. The appellant

thereafter stopped taking care of his son as well as the respondent.

Thereafter, the respondent was advised to file a maintenance case against the

respondent and accordingly she had filed MC.No.21 of 2009 on the file of the

Chief Judicial Magistrate, Perambalur seeking a monthly maintenance. The

appellant is a teacher by profession earning a sum of Rs.18,500/- per month

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and was also a money lender earning not less than Rs.20,000/- per month

through the said business. She therefore, sought for a dismissal of the petition

on the ground that the appellant had not made out any case of cruelty against

her.

5. During the trial, the appellant had examined himself as P.W.1 and

no document was marked on his side. On the side of the respondent she had

examined herself as R.W.1 and marked Ex.R.1 to Ex.R.3.

6. The Tribunal on considering the evidence on record both oral as

well as documentary and after hearing the arguments of the counsel of the

either side held that the appellant had not made out a case for divorce

particularly when he has not been able to prove the allegations made by him.

Challenging the judgement, the appellant had filed CMA No.8 of 2015 on the

file of the Principal District Perambalur. The learned Judge by her judgment

dated 04.06.2016 was pleased to confirm the judgment passed by the learned

Sub Judge. The learned Judge had also concurred with the finding that the

appellant who had come forward for seeking divorce on the ground of cruelty

has not proved the same. Challenging the same the appellant is before this

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Court.

7. Heard the counsel on either side.

8. The allegations of cruelty are :-

A. That the appellant was suspicious.

B. She and her family members had used abusing language

against the appellant and his family members.

C. She had attempted suicide.

D. On account of her ill-treatment the petitioner had tried to

commit suicide twice.

9. A perusal of the petition as well as the evidence would clearly show

that none of these allegations have been proved. As regards the 1st ground of

cruelty it is a categoric case of the respondent that it is the appellant who is in

a relationship with another women and this fact has not been denied by the

appellant/husband by filing a reply statement. Therefore, the appellant cannot

contend that even if there was a quarrel between the husband and wife it was

without any basis. It is but natural that any wife would be upset if her

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husband is in relationship with another women. Therefore, this does not

amount to cruelty. With reference to the other two grounds namely the use of

abusive language and the physical threat by the respondent and her family

members, the same has not been proved by the appellant by letting in any

independent evidence. Therefore, the Courts below have rightly held that the

appellant has not proved the ground of cruelty.

10. The learned counsel for the appellant has made submissions that

the appellant and the respondent have been living apart from 13 years and

there is no possibility for them to reunite. He would also rely upon the

judgment of the Hon’ble Supreme Court reported in (2013) 5 SCC 226 -

K.Srinivas Rao Vs. D.A.Deepa. Unfortunately, irretrievable breakdown of

marriage is not yet made a ground for divorce in the statute book. Even in the

judgment relied upon by the learned counsel, the learned Judges have

observed as follows:-

" 31. We are also satisfied that this marriage has

irretrievably broken down. Irretrievable breakdown of

marriage is not a ground for divorce under the Hindu

Marriage Act, 1955. But, where marriage is beyond repair

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on account of bitterness created by the acts of the husband

or the wife or of both, the courts have always taken

irretrievable breakdown of marriage as a very weighty

circumstance amongst others necessitating severance of

marital tie. A marriage which is dead for all purposes

cannot be revived by the court's verdict, if the parties are

not willing. This is because marriage involves human

sentiments and emotions and if they are dried up there is

hardly any chance of their springing back to life on account

of artificial reunion created by the court's decree"