Madras High Court
N. Madheshwaran vs Latha @ Chinnaponnu on 5 June, 2024
Author: J. Nisha Banu
Bench: J. Nisha Banu, V. Sivagnanam
CMA.No.939 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2024
CORAM
THE HONOURABLE MRS. JUSTICE J. NISHA BANU
&
THE HONOURABLE MR.JUSTICE V. SIVAGNANAM
C.M.A.No.939 of 2022
N. Madheshwaran ... Appellant
Vs.
Latha @ Chinnaponnu ... Respondent
Civil Miscellaneous Appeal filed under section 19 of Family Court Act
against the judgment and decree dated 07.02.2019 made in F.C.O.P.No.487 of
2010 on the file of the Family Court, Salem
For Appellant : Mr. T.S. Vijaya Raghavan
For Respondent : No appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed by the Appellant/husband
challenging the order passed in FCOP.No.487 of 2010 in and by which, the Family
Court Judge, Salem, dismissed the petition filed by the appellant/husband seeking
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divorce on the ground of adultery and cruelty.
2. The learned counsel appearing for the appellant/husband submitted that
the marriage between the appellant and respondent was solemnized on 19.06.1996
and out of their wedlock, three female children and one male child were born. The
respondent has often deserted the family of the petitioner and their four children
leaving them uncared and the petitioner also came to know that the respondent is
having illegal intimacy with one Asaithambi. Hence the appellant filed
FCOP.No.487 of 2010 before the Family Court, Salem on the ground of adultery
and mental cruelty. The learned Family Judge, Salem dismissed the divorce
petition on the ground that the appellant failed to establish adultery and cruelty on
the part of the respondent. Against which, the appellant has preferred the present
Civil Miscellaneous Appeal.
3. He further submitted that the appellant and the respondent have
been living separately for the past 14 years. The appellant has been taking care of
the four children born to them and even the children are not ready to go with the
respondent and they are not ready to visit their own mother. The respondent filed
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G.O.P.No.6 of 2011 before the Family Court Salem, seeking custody of the
children, wherein, all the children were examined by the trial judge. Before the
trial judge, all of them have categorically deposed that they do not intend to go
with their mother. Based on the wishes of the children, the Family Court dismissed
the G.O.P.No.6 of 2011 by recording that the children is not ready to go with their
mother.
4. He would further contend that the appellant deserted the
respondent in the year 2010 and the appellant herein is struggling to maintain all
the four children and both of them were living separately for the past 14 years. In
the impugned order itself, the learned trial Judge, in paragraph 6 has observed that
inspite of serious efforts of reconciliation between the parties, the parties were
unable to arrive at an amicable settlement'. The learned counsel for the appellant
would further contend that from the deposition of the children in GOP.No.6 of
2011 before the trial Judge that they are willing to be with their father and not
ready to go with their mother and according to them, the children are unwilling to
go with their mother. Thus he prayed for allowing of this Civil Miscellaneous
Petition by setting aside the order passed in FCOP.No.487 of 2010.
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5. Heard the learned counsel appearing for the appellant and perused
the entire materials available on record. Though notice served on the respondent
and her name being printed in the cause list, there is no representation for her,
today when the matter is called.
6. Perusal of records would go to show that on the ground of cruelty
and adultery, the appellant filed a petition for divorce against the respondent in
FCOP.No.487 of 2010 and the trial Judge dismissed the divorce petition stating
that the appellant failed to establish adultery and cruelty on the part of the
respondent. It is the contention of the appellant that the appellant has been living
separately for the past 14 years and the children born to them were not ready and
willing to go with the respondent as she has often deserted the family of the
appellant and their four children and failed to be a dutiful mother. Besides that,
during their examination before the court in GOP.No.6 of 2011, the children born
to them, have deposed that they are not ready and willing to go with their mother
and they want to be with their father and the same was recorded by the trial Judge
while dismissing the GOP.No.6 of 2011. That apart, it is seen that the efforts put
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in by the trial court for reconciliation between the parties went in vain.
7. In Rakesh Raman Vs. Kavita reported in AIR 2023 SCC 2144, the
Honourable Supreme Court in paragraph 18, held as follows:-
“18. We have a married couple before us who have barely
stayed together as a couple for four years and who have now been
living separately for the last 25 years. There is no child out of th
e wedlock. The matrimonial bond is completely broken and is
beyond repair. We have no doubt that this relationship must end
as its continuation is causing cruelty on both the sides. The long
separation and absence of cohabitation and the two , has to be
read as cruelty Under Section 13(1)(ia) of the 1955 Act. We
therefore hold that in a given case, such as the one at hand, where
the marital relationship has broken down irretrievably, where
there is a long separation and absence of cohabitation (as in the
present case for the last 25 years), with multiple Court cases
between the parties; then continuation of such a marriage would
only mean giving sanction to cruelty which each is inflicting on
the other. We are also conscious of the fact that a dissolution of
this marriage would affect only the two parties as there is no
child out of the wedlock.'
In the present case also, there is a long separation, thereby it has to be read as
cruelty. Therefore, in the light of above judgment, we are inclined to allow this
appeal as the matrimonial bond is completely broken and is beyond repair. On the
abovesaid ground also the appellant is entitled to divorce.
8. Taking into consideration that the respondent is not before this court and
also the fact that the appellant and the respondent are living separately for the past
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14 years and taking into consideration that the children were also not willing to go
with their mother as recorded by the court below in GOP.No.6 of 2011, one can
infer that there is irretrievable break down of marriage and there would be no
useful purpose in keeping the marriage alive. Hence we are inclined to allow this
appeal. Accordingly, the Civil Miscellaneous Appeal is allowed. The judgment
and decree passed in FCOP.No.487 of 2010 by the Family Court, Salem is hereby
set aside. No costs.
[J.N.B.,J.] [V.S.G.,J.]
05.06.2024
Index: yes/no
Internet:yes/no
msr/nvsri
To
The Judge, Family Court, Salem.
J. NISHA BANU, J.
&
V. SIVAGNANAM, J.
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msr/nvsri
05.06.2024
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