Madras High Court
Subbu vs Manickavalli on 13 February, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.MD) No.1106 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.02.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A(MD)No.1106 of 2018
Subbu ... Appellant/ Petitioner
-Vs-
Manickavalli ... Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act, to call for the records to relating the judgment and decreetal order
passed in H.M.O.P.No.97 of 2017 dated 06.09.2018 on the file of the learned
Family Court, Sivagangai and set aside the same.
For Petitioner : Mr.M.Ramu
For Respondent : Mr.RMS.Sethuraman
(No apperaance)
Page 1 of 7
https://www.mhc.tn.gov.in/judis
C.M.A.MD) No.1106 of 2018
JUDGMENT
DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
The appellant, who is the husband of the respondent, has filed H.M.O.P.No.
97 of 2017 before the Family Court, Sivagangai, for divorce, on the ground of
cruelty and desertion.
2.The said petition was strongly opposed by the respondent/wife denying
the allegation and also making counter allegation against the appellant/husband
that he is leading a adulterous life. The Family Court, after appreciating the
evidence and formation of testimony of P.W.1, P.W.2, R.W.1, R.W.2 and R.W.3
and Ex.P.1-the marriage invitation was marked as a document, dismissed the
petition stating that the petitioner/husband failed to prove cruelty as well as
dessertion.
3.The learned counsel for the appellant submitted that though a separtion is
admitted by the respondent/wife, the trial Court has justified the desertion on the
ground that the wife has developed suspicion about the fidility of the husband and
therefore, she has left the matrimonial home. The husband, over due to dispel the
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doubt about his fidility having failed he must sustain application for divorce.
4.The learned counsel would further submit that the vague allegation
against the appellant that he had intimacy with one Geetha, who is a staff working
in his photo studio and also begotten a child, is not supported by any evidence.
Furthermore, it was a plea taken as a defence to the divorce petition and not a
primary grievance of the respondent while she deserted him. Further, the learned
counsel would also submit that the said allegation by itself tantamount to cruelty
which the trial Court has failed to take note of.
5.The learned counsel also draw the observation of the Court below
regarding the allegation of cruelty by appealing the said allegation is nornal,
wherein it was in the ordinary walks of family life and observating that those
allegations are not grave.
6.Though the respondent/wife has entered appearance through the counsel
and requested to participate in the conciliation proceedings, there is no inclination
on the part of the respondent to contest the appeal. Today, when the matter is
listed for final heraing, there is no representation. It is also to be noted that even if
the dismissal of the divorce petition, there is no material to show that the
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respondent/wife has taken steps for reunion or restitution of conjugal rights.
7.This Court, on perusing the records, finds that except the marriage
invitation, there is no documentory evidence relied on either side. The said
marriage invitation is a proof of marriage and it is a fact, is not disputed by either
of a party. Rest of the allegations are both against oath.
8.The core point involved in this matter is whether the appellant/husband
was subjected to cruelty and separation of the respondent/wife from the company
of the appellant was voluntary or intentional.
9.The testimony of the respondent examined as R.W.1 and the counter filed
by her clearly indicated that for the first time in the counter, she has made certain
allegations against the appellant to justify her voluntary withdrawal from the
matrimonial relationship. She had the allegation against the appellant that he
earlier married one Saala and got divorce and the same was suppressed. To
substantiate that allegation, she has not produced any document or proof. She has
made allegation against the appellant that he have affair with one Geetha,
employee in his studio and a child was born to them. For this allegation also, there
is no proof to substantiate it. She admits that she has wrongly mentioned in the
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counter that she is living with the mother for the past two years at Coimbatore and
conceede that she is living in Coimbatore only for the past six months. There is no
explanation whether she was living soon after the dessertion.
10.The specific case of the appellant is that the marriage was solemnised on
02.02.2006 sustained for a short period, since there was no dispute between them
and after six months of the marriage, the respondent went to her parental house
and stayed one year and thereafter at the intervention of the family members and
elders, she reunited with the appellant, but failed to discharge her matrimonial
duties. She voluntarily disserted him and started living with her parents and she
left the parental house in the year 2006 and was living separately elsewhere till
2015.
11.The respondent, for this specific allegation, has made contrary
explantion and none of the explanations are satisfactory. Despite these facts, the
Court below had dismissed the petition stating that the difference of opinion can
be emerged in the matrimonial life is common in all family and the separation of
the husband and wife since 2008 till the date of filing the O.P and thereafter will
not amount to voluntarily desertion. The reasons stated by the trial Court duly
contrary to the evidence avaiable.
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12.In view of the above, the order of the trial Court dated 06.09.2018 in
H.M.O.P.No.97 of 2017, is set aside and the appeal stands allowed and the decree
of divorce is granted. No costs.
[G.J., J.] & [R.P., J.]
13.02.2025
NCC : Yes / No
Index : Yes / No
Ns
To
1.The Family Court,
Sivagangai.
https://www.mhc.tn.gov.in/judis
DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
Ns
13.02.2025
https://www.mhc.tn.gov.in/judis
