Madras High Court
K.Balaji vs Vijayasanthi on 11 August, 2023
C.M.S.A.No.18 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.S.A.No.18 of 2020
K.Balaji ... Appellant
Vs.
Vijayasanthi ... Respondent
Civil Miscellaneous Second Appeal filed under Section 100
r/w 106 of Civil Procedure Code to set aside the judgment and decree dated
16.12.2019 passed in C.M.A.No.8 of 2017 on the file of the learned
I Additional District and Sessions Judge, Cuddalore, confirming the fair
order and decretal order dated 23.12.2016 passed in H.M.O.P.No.21 of
2013, on the file of the learned Subordinate Judge of Panruti.
For Appellant : Mr.R.Gururaj
For Respondent : No appearance
JUDGMENT
Challenging judgment dated 16.12.2019 passed in C.M.A.No.8
of 2017 by the learned I Additional District and Sessions Judge, Cuddalore,
confirming the order dated 23.12.2016 passed in H.M.O.P.No.21 of 2013,
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C.M.S.A.No.18 of 2020
on the file of the Subordinate Court, Panruti, the present appeal has been
filed.
2. The appellant is the husband, who has filed divorce against
her wife on the ground of cruelty and desertion under Sections 13(1)(a) and
(1)(b) of the Hindu Marriage Act, 1955 before the learned Subordinate
Judge, Panruti in H.M.O.P.No.21 of 2013 and the said petition was
dismissed by the trial Court. As against the said order, the appellant herein
has preferred C.M.A.No.8 of 2017 before the learned I Additional District
and Sessions Judge, Cuddalore in C.M.A.No.8 of 2017 and the same was
dismissed. Aggrieved over the same, the husband has filed the present
second appeal before this Court.
3. This Court formulated the substantial question of law :
(i) Were not the lower Courts at gross error in not
finding that the respondent had deserted the appellant even
though she is living away since 2010 without any effort at
restitution ?
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C.M.S.A.No.18 of 2020
(ii) Did not the lower Courts grossly err in failing
to see that not living with the husband for several years, not
allowing to father to see the child and enjoy fatherhood ?
(iii) Did not the lower Courts commit error in
failing to see that the parties have reached a level that the
marriage has broken irretrievably ?
4. The learned counsel for the appellant would submit that the
respondent left the matrimonial home voluntarily without any valid reason.
The respondent went to her parental home for giving birth to a child, even
after giving birth to the child, she did not return back to the matrimonial
home and she was living with her parents, which clearly shows that the
respondent deserted her husband. Though the appellant took much efforts to
bring her back to the matrimonial home, she did not response to the same.
He further submitted that she has not informed about the birth of the child
and also suppressing her employment and other activities, she had filed
maintenance case, in which, she has clearly stated that she is living
separately, which itself clearly shows that the respondent is living separately
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C.M.S.A.No.18 of 2020
from the appellant, since 2010. Both the Courts below without appreciating
the fact that the respondent is living separately since 2010 and the adamant
attitude of the respondent dismissed the cases, which warrants interference
by this Court.
5. Heard the learned counsel for the appellant and perused the
records. There is no representation for the respondent.
6. Admittedly the marriage between the appellant and
respondent is not in dispute and paternity of the child is also not in dispute.
The only allegation is that the respondent/wife left the matrimonial home
voluntarily without any valid reason and also caused mental cruelty to the
appellant.
7. In order to prove the contention of the appellant, the
appellant examined himself as P.W.1 and no other independent witness was
examined. On the side of the respondent, the respondent examined herself
as R.W.1, and one Velmurugan, who is the neighbour of the respondent
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C.M.S.A.No.18 of 2020
was examined as RW2 and they denied all the allegations levelled against
her by the appellant in the said petition for divorce. The appellant herein has
filed the petition on the ground of cruelty and desertion, even though the
mental cruelty of the respondent cannot be proved through the third party
evidence. However, the appellant has stated that after the marriage, the
respondent was living away from the appellant, she went to her parental
home to give birth to a child and after giving birth to the child she did not
return back to her matrimonial home. Though the respondent has admitted
that she is ready to go with her husband if he customarily invites her to the
matrimonial home, there is no evidence to prove that after giving birth to
the child, the appellant went to her parents house and customarily invited
her back to his home.
8. Except the evidence of the appellant, none of the witnesses
were examined to prove what steps he has taken to bring the respondent
back to her matrimonial home.
9. Considering the above facts and circumstances, this Court as
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C.M.S.A.No.18 of 2020
appellate Court, re-appreciated the entire materials and this Court finds that
all the findings are based on factual aspects, there was no substantial
questions of law and irretrievable break down is not a ground for divorce.
Only the Hon'ble Supreme Court alone can pass divorce on the ground of
irretrievable break down of marriage. The trial Court has no jurisdiction to
grant divorce on that ground, all the substantial question of law are
answered, accordingly. This Court also finds that there is no perversity in
appreciation of the evidence and the findings given by both the Courts
below.
10. This Civil Miscellaneous Second Appeal is dismissed,
accordingly. There shall be no order as to costs.
11.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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C.M.S.A.No.18 of 2020
To
1. The I Additional District and Sessions Judge,
Cuddalore.
2.The Subordinate Judge,
Panruti.
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C.M.S.A.No.18 of 2020
P.VELMURUGAN, J.
ms
C.M.S.A.No.18 of 2020
11.08.2023
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