Madras High Court
Chitra vs Selvakumar on 31 January, 2023
C.M.A.(MD)No.827 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.01.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD)No.827 of 2019
and
C.M.P.(MD)No.10892 of 2019
Chitra, D/o.Thangasamy ... Appellant
vs.
Selvakumar, S/o.Perumal Nadar ... Respondent
Prayer :- Civil Miscellaneous Appeal filed under Section 19 of the Family
Court Act, against the fair and decreetal order, dated 16.05.2019, passed in
H.M.O.P.No.88 of 2018, on the file of the Family Court, Kanyakumari at Nagercoil.
For Appellant : Mr.V.Balaji
For Respondent : Mr.Saravanakumar
JUDGMENT
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
The appellant herein, who is the wife, being unsuccessful in her petition
for dissolution of marriage with the respondent, has preferred this appeal.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.827 of 2019
2. The sum and substance of the case is that the appellant and the
respondent loved each other. The marriage was solemnized on 07.12.2014. From
the wedlock, a female child was born on 31.10.2015. At the time of marriage, the
respondent was gainfully employed as a Professor in a private Engineering College.
Whereas, the appellant was an unemployed graduate. After the child birth, the
scenario is changed. The respondent lost his job. The appellant got an employment
in the State Bank of India and was posted at Palavoor. It appears that the rift
between the spouses got widened. The respondent became an Alcoholic. Alleging
that the appellant was subjected to cruelty, a complaint has been given by her father
before the All Women Police Station, Kanyakumari on 30.07.2017, which were cited
as reasons for divorce on the ground of cruelty.
3. The petition was contested by the respondent alleging that the child has
been forcibly taken away from his custody by the appellant on the instigation of her
father and he is not permitted to see the child by the appellant and her parents and the
complaint has been lodged to get rid of the respondent.
4. Before the Family Court, the appellant and her Uncle Muralikumar were
examined as appellant's side witnesses. On behalf of the respondent, three witnesses
including the respondent were examined. The Marriage Invitation, Marriage
Certificate, Marriage Photographs, Aadhaar Card of the appellant and the complaint
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.827 of 2019
given to the All Women Police Station, Kanyakumari, were marked as exhibits on
behalf of the appellant. The family photograph is marked as exhibit on behalf of the
respondent.
5. The Court below after analyzing the evidence, has found that the
allegation of cruelty made in the petition as well as Ex.P.5 - Police complaint is not
made out. The appellant has neglected and assaulted her husband, since he had no
permanent job or earning. Also, the trial Court has observed that the respondent
scrammed to reunite with his wife and the appellant is deprived of having the
custody of visitation of his daughter. Therefore, appointing the mother as a guardian,
the Court below dismissed her petition for divorce, directed the respondent to pay
Rs.5,000/- per month as maintenance to the minor child and gave him the visitation
right.
6. The learned counsel for the appellant submitted that the Court below in
fact on specific evidence regarding demand of additional dowry and cruelty, has
failed to appreciate the evidence. He further submitted that though the Court below
dismissed the divorce petition and granted the custody of the child with the appellant
with the right of visitation to the respondent and the responsibility of paying
maintenance of Rs.5,000/- per month, he has neither exercised his right to visit the
minor child nor discharged his responsibility to pay Rs.5,000/- per month, which will
expose the lack of interest in the child and also restoring the marital relationship.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.827 of 2019
7. The learned counsel appearing for the respondent admits that the
respondent has not paid any maintenance. He has never visited or attempted to visit
the minor child and till date, the spouses have not reconciled their dispute.
8. In the light of the above facts, though the order of the Family Court,
dismissing the divorce petition for want of evidence does not exhibit any infirmity,
but, the conduct of the respondent during the post-judgment period by not making
any sincere efforts for re-union and maintain the minor child certainly caused cruelty
both to his wife and the child. The non-inclination to reunite on the part of the
respondent, lends credence to the plea of the appellant. Hence, this Civil
Miscellaneous Appeal is allowed. The marriage solemnized between the appellant
and the respondent on 07.12.2014 is dissolved. However, the order of the Family
Court in respect of the visitation right and maintenance holds good. No costs.
Consequently, connected Miscellaneous Petition is closed.
NCC : Yes / No [G.J., J.] [S.M., J.]
Index : Yes / No 31.01.2023
Internet : Yes / No
SMN2
To
1.The Family Court,
Kanyakumari at Nagercoil.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.827 of 2019
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.827 of 2019
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
SMN2
JUDGMENT MADE IN
C.M.A.(MD)No.827 of 2019
DATED : 31.01.2023
https://www.mhc.tn.gov.in/judis
