Madras High Court
Sekar vs Kannimariyaal on 15 September, 2022
CMA (MD)No.1406 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.09.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
CMA (MD)No.1406 of 2015
Sekar .. Appellant/
Petitioner
Vs.
1.Kannimariyaal
2.P.Kumar .. Respondents/
respondents
Prayer : Civil Miscellaneous Appeals are filed under Section 55 of the
Indian Divorce Act, to set aside the fair and decreetal order dated
07.04.2015 made in I.D.O.P.No.432 of 2014 on the file of the Family Court,
Tirunelveli.
For Appellant : Mr.S.Vinayak
For respondents : Mr.V.Kannan for R1
No appearance for R2
Page 1 of 5
https://www.mhc.tn.gov.in/judis
CMA (MD)No.1406 of 2015
JUDGMENT
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
This appeal has been filed as against the dismissal of IDOP No.
432/2014 filed by the appellant seeking for the dissolution of marriage
against the first respondent on the ground of adultery and cruelty.
2. Heard the learned counsel for the appellant and the learned counsel
for the first respondent.
3. In the present case, there is no requirement for this Court to go into
the merits of this case, since the Court below has dismissed the petition by
assigning the following reasons:
“6.,k;kDtpy; kDjhuh; jug;gpy; tprhhpf;fg;gl;l
k.rh.1 jdJ ep&gz thf;F%yj;jpy;> jdJ tptuq;fis
xj;Jf;nfhz;Lk;> vjph;kD tptuq;fis kWj;Jk; jhf;fy;
nra;Js;shh;. Mdhy; k.rh.1I tprhuizf;fhf rhl;rp
$z;by; miof;fg;gl;L> mth; rhl;rp $z;by; Vwp gpwNf
rhl;rpapy; ep&gz thf;F%yj;jpy; ifnaOj;jpl;Ls;shh;.
fw;wwpe;j tof;fwpQh; vd.vk.vd.3238/10 vd;gtuhy;
https://www.mhc.tn.gov.in/judis
CMA (MD)No.1406 of 2015
rhl;rpapy; ifnahg;gk; ,y;yhky;> ep&gz thf;F%yj;jpy;
rhd;nwhg;gk; ,l;Ls;s Nkw;gb nray;> ePjpKiwf;F
vjpuhdJ vdf; fUjp ,k;kD ePjpapy; eyd; fUjp
js;Sgb nra;ag;gLfpwJ.
7) Kbthf ,k;kD> ePjpapd; eyd; fUjp k.rh.1
deposition-y; gpwg;gpf;fg;gl;l cj;jputpy; mbg;gilapy;
js;Sgb nra;J cj;jputplg;gLfpwJ.”
4. It is quite unfortunate that the Court below had chosen a frivolous
ground for dismissing the divorce petition filed by the appellant. The fact
remains that the appellant had signed the proof affidavit, after he got into
the witness box. The proof affidavit was brought in only as an alternate to
examine the witness in chief and to save the time of the Court. If a witness
is examined in chief before the Court, it is only after the completion of the
examination, the witness actually signs in the deposition. Therefore, just
because the appellant had signed the proof affidavit, when he was in the
witness box, that does not mean that the entire proof affidavit must be
thrown out and on that ground the very petition should be dismissed. Even
without going into the merits of the case, it is very clear from the judgment
that the Court below wanted to adopt a shortcut method to dispose of this
matter.
https://www.mhc.tn.gov.in/judis
CMA (MD)No.1406 of 2015
5. We have absolutely no hesitation to interfere with the judgment
passed by the Court below and the same is hereby set aside. The matter is
remanded back to the file of the Family Court, Tirunelveli. There shall be a
direction to the family Court to start the proceedings from the stage of
examination of the appellant and proceed further in accordance with law.
The proceedings shall be completed within a period of three months from
the date of receipt of a copy of this judgment.
6. In the result, this civil miscellaneous appeal is allowed. No costs.
(J.N.B.,J.) (N.A.V.,J.)
15.09.2022
Index : Yes/No
Internet : Yes
RR
To
1.The Family Court, Tirunelveli.
2.The VR Section
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA (MD)No.1406 of 2015
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
RR
CMA (MD)No.1406 of 2015
15.09.2022
https://www.mhc.tn.gov.in/judis
