Madras High Court
John Ruban vs Philominal on 12 February, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
2025:MHC:440
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.02.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MS. JUSTICE R.POORNIMA
C.M.A(MD)No.696 of 2019
John Ruban ...Appellant/Petitioner
.Vs.
1.Philominal
2.Murugan ... Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of the Indian
Divorce Act praying this Court to set aside the order passed by the Family Court,
Dindigul in I.D.O.P.No.26 of 2017, dated 3.8.2019.
For Appellant : Mr.G.Gomathi Sankar
For Respondent-2 : Mr.N.Sathish Babu
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JUDGMENT
(Judgment of the Court was made by DR.G.JAYACHANDRAN.,J)
The appellant, being aggrieved by the dismissal of his divorce petition by
the Family Court, Dindigul is before this Court to set aside the dismissal order
and to grant divorce.
2.The appellant and first respondent belongs to Christianity.Their marriage
was solemnized as per Christian rites and customs on 1.12.2016. A child was
born to the first respondent on 20.09.2017. Even before that, the appellant had
knocked the doors of the Court by filing a petition under Section 10(1)(x) of
Indian Divorce Act on the ground of cruelty and adutlery. The second respondent
is the named adulteror. According to the appellant, the first respondent had affair
with the second respondent even before the marriage. Soon after the marriage,
within few days, she left the matrimonial home and went to her parental house
and continued the affair with the second respondent. This was brought to the
notice of the Village Panchayat and on their advise, the first respondent joined
the appellant for a brief period. She gave birth to a male child on 20.09.2017 and
remain at her parental house. The appellant had made allegations against the first
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respondent that she had been torturing him mentally and she refused to
consumate the marriage and continued her affair with her boy friend, who is the
second respondent. It is also alleged in the petition that the telephonic
conversation of the first respondent with the second respondent was recorded
and the same retrieved subsequently through her husband, who would disclose
her extra marital affair.
3.After service of notice, both the first and second respondents appeared
through their counsel and filed the counter. Based on the counter, the trial Court
framed the following issues for consideration:
(1)Whether the first respondent had committed adultery and cruelty,
apprehends danger to the life of the appellant or not?(sic)
(2)Whether the marriage of the appellant with the first respondent shall be
dissolved or not?
4.The appellant mounted the witness box and examined as P.W.1 and one
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Yuvaraj was examined as P.W.2. He was cross-examined by the first respondent.
In support of his case, four documents were marked by the appellant which are
the marriage invitation, the marriage certificate, the Petition given by the
appellant to the Superintendent of Police regarding desertion and cruelty of the
first respondent and the the compact disc containing the alleged conversation of
the first respondent with the second respondent. The first respondent is the wife
of the appellant, who remained absent before the Court below. Subsequently, she
was set exparte on 14.3.2019. No evidence, both oral and documentary, was
adduced on the side of the first respondent. The trial Court, on considering the
evidence placed before it, disbelieved the case of the appellnt and dismissed the
Petition for divorce. Being aggrieved, the present Civil Miscellaneous Appeal is
filed on the ground that the Court below failed to draw adverse inference against
the respondents, who did not adduce any evidence to disprove the case of
adultery alleged against him. Unjustified separation by the first respondent and
refusal to have sexual relationship with him is a cruelty which is a ground to
grant divorce. The copy of the complaint given by the appellant to the
Superintendent of Police- Ex.P3, was disbelieved by the Court below without any
explanation.
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5.The learned counsel for the appellant relying upon the judgment of this
Court rendered in T.Tamilarasan .vs. Arokkiasamy and others reported in
2007(3) CTC 59 submitted that the party who entered the witness box to
substantiate the contentions made in the pleading has to suffer adverse inference
against him. The learned counsel would submit that the above judgment is based
on the dictum laid down by the Honourable Supreme Court in Vidhyadhar .vs.
Mankikrao reported in AIR SCW 1129. The Honorable Supreme Court, in the
case cited supra, has held as below:
18..........
‘’Where a party to the suit does not appear into the witness
box and states his own case on oath and does not offer himself to
be cross examined by the other side, a presumption would arise
thatthe case set up by him is not correct as has been held by
various High Courts and the Privy Council begingging from the
decision in Sardar Gurbksha Singh .vs. Gurdial Singh, AIR 1927
PcC 230.This was followed by the Lahore High Court in Kirpa
Singh .vs.Ajaipal Singh AIR 1930 Lah. I and the Bombay High
ourt in Ulla Kharagjit Carpenter .vs. Narsingh Nandkishore
Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council
decision in Sardar Gurbakhsh Singh’s case AIR 1927
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PC230(Supra).The Allahabad High Court in Arjun Singh .vs.
Virender Nath, AIR 1971 All. 29 held that if a party abstains from
entering the witness box, it would give rise to an inference
adverse against him.Similarly, a Division bench of th Punjab and
Harayana High Court in Bhagwan Dass .vs. Bhishan Chand, AIR
1974 P and H 7, drew a presumption under Section 114 of the
Evidence Act against a party who did not enter into the witness
box.’’
6.Though notice was served to both respondents, the first respondent has
not entered appearance and the second respondent entered appearance through his
learned counsel Mr.N.Sathish Babu.
7.The l;earned counsel for the second respondent would submit that
unnecessarily, the second respondent has been dragged as an adulteror in this
case without any evidence and since his reputation is at stake, he is forced to
contest the case. The second respondent has filed his counter denying all the
allegations and has chosen not to cross-examine the appellant’s side evidence
or let in any evidence on his side, since it is purely a matrimonial dispute
between the apepllant and the first respondent. This cannot be construed as an
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implicit concerned to the allegations made against him to draw adverse inference.
The Court below has rightly held that the appellant who has made allegations of
adultery is bound to prove the same. The non-examination of witness or non
participation in the trial by the second rspondent will not enure adverse inference
in his favour.
8.It is a case of matrimonial dispute of a Christian couple, wherein, pre-
amendment legal position mandates that to dissolve a marriage solemnized under
Christian law must be on the ground of adultery coupled with cruelty or
desertion. The said provision been later omitted by Act 6 of 2010 with effect
from 01.03.2019, wherein, there is no compulsion or mandate to establish the
adultery to get divorce. This Court is of the view that matrimonial relationship is
a continous fact.The parties who solemnize marriage as per their religious
customs have decided to get separated and not interested in retrieving the
marital relation. The dispute to be viewed pragmatically in the light of change in
the legislation and circumstances. Here is a case where the husband has made an
allegation of adulterous life of his wife. Though there is no adequate proof for
the same, the respondents apart from denying the allegations through their
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pleadings, had chosen not to contest the case any further and the first respondent
had remained exparte in the trial Court.
9.The learned counsel for the appellant states that the first respondent is
living with her child separately since November 2017. Earlier she filed Domestic
Violence case in Petition No.80 of 2017, but did not pursue the petition and the
same got dismissed for default on 12.11.2021.Even before that, she did not
evinced any interest and was set exparte by the trial Court, due to her absence.
Long separation and the refusal to cohabit with the appellant has to be construed
as cruelty which falls within the scope and ambit of Section 10(i)(x) of the
Indian Divorce Act
10.After considering the submissions made by the learned counsel for the
appellant and the documents relied, this Court is inclined to allow the appeal
considering the fact that the first respondent for a long period without any
explanation or justification deserted her husband which indicates that she is not
inclined to live with the appellant. This tantamounts to cruelty and in view of the
amendment to the Act in the year 2019, the appellant is not bound to prove the
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adultery though he has made allegations of adultery.
11.Accordingly, the Civil Miscellaneous Appeal is allowed.The judgment
and decree made in I.D.O.P.No.26 of 2017, dated 3.8.2019,on the file of Family
Court, Dindigul is set aside.The marriage solemized between the appellant and
first respondent on 01.12.2016 according to Christian rites and customs at Puitha
Vanathu Chinnappar Church in Karunkalpatty Village stands dissolved by a
decree of divorce. There shall be no order as to costs.
[G.J.,J.] [R.P.,J.]
12.02.2025
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
To
The Judge,
Family Court,
Dindigul.
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Copy to
The Section Officer
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
and
R.POORNIMA,J.
vsn
JUDGMENT MADE IN
12.02.2025
https://www.mhc.tn.gov.in/judis
