Madras High Court
R.K.Dhivya vs C.J.Selva Singh on 26 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 C.M.A.(MD)NO.886 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.01.2025
PRONOUNCED ON : 26.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)Nos.886 & 986 of 2022
C.M.A(MD)No.886 of 2022
R.K.Dhivya ... Appellant / Respondent
Vs.
C.J.Selva Singh ... Respondent / Petitioner
Prayer: Civil Miscellaneous Appeal filed under Section 19
of the Family Courts Act, 1984, to set aside the order passed in
D.O.P.No.199 of 2020 dated 29.07.2022 on the file of the Family
Judge, Tirunelveli by allowing the civil miscellaneous appeal.
For Appellant : Mr.J.Alaguram Jothi
For Respondent : Mr.S.Kumar
***
C.M.A(MD)No.986 of 2022
Selvasingh ... Appellant / Petitioner
Vs.
R.K.Divya ... Respondent / Respondent
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2 C.M.A.(MD)NO.886 OF 2022
Prayer: Civil Miscellaneous Appeal filed under Section 19
of the Family Courts Act, 1984, to set aside the judgment and decree
made in I.D.O.P.No.199 of 2020 dated 29.07.2022 on the file of the
Family Court, Tirunelveli in respect of ordering permanent alimony
alone and allow the above appeal.
For Appellant : Mr.S.Kumar
For Respondent : Mr.J.Alaguram Jothi
***
COMMON JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
The marriage between Selvasingh and R.K.Dhivya was
solemnized on 19.01.2018 at Pettai, St.Antony's Church as per the
Christian rites and customs. A girl child was born through the
wedlock on 06.07.2020. Selvasingh was employed as Marine
Engineer. The marital relationship came under strain. Alleging that
the acts of the wife constituted cruelty, Selvasingh filed D.O.P.No.199
of 2020 on the file of the Court of Family Judge, Tirunelveli seeking
dissolution of marriage. Dhivya filed counter controverting the
allegations made by her husband. The husband examined himself as
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P.W.1. One Baskar, a relative was examined as P.W.2. Ex.P.1 to
Ex.P.10 were marked. Dhivya examined herself as R.W.1 and marked
a copy of the complaint given by her before AWPS, Palayamkottai as
Ex.R.1. After considering the evidence on record, the trial Judge vide
order dated 29.07.2022 allowed the DOP in the following terms:-
“18. In the result, this petition is allowed and
the marriage between the petitioner and the
respondent solemnized on 19.01.2018 is hereby
dissolved by granting decree for divorce u/s.10(1)(x)
of Divorce Act and the petitioner is directed to pay a
sum of Rs.10,00,000/- each as permanent alimony to
the respondent and her child within two months from
the date of this order as per Section 37 of the Divorce
Act and it is specifically ordered that this decree shall
take effect only on payment of above said amount by
the petitioner to the respondent and her child. Both
parties are hereby directed to bear their own costs.”
2. Aggrieved by the same, Dhivya filed C.M.A.(MD)No.886 of
2022. Aggrieved by the direction to deposit a sum of Rs.10 Lakhs
towards permanent alimony, Selvasingh filed cross objection in
C.M.A.(MD)No.986 of 2022.
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3. The learned counsel on either side reiterated all the
contentions set out in the respective memorandum of grounds of
civil miscellaneous appeals.
4. The point for determination is whether the Court below
was justified in dissolving the marriage.
5. The stand of the husband can be summarised as follows:-
The appellant was not a dutiful wife. She would often
quarrel with him. She had suicidal tendencies. On one occasion, she
consumed Phenyl. She filed several false complaints before the police
against the petitioner and her in-laws. On 20.01.2020, she took back
all her jewels. She made it clear that she did not want to live with the
petitioner. She did not come for counselling. The relationship
between the parties had irretrievably broken down.
6. The appellant / wife had denied the allegations made by
her husband. She admitted the execution of Ex.P.9 in her cross
examination. Ex.P.9 reads as follows:-
“Myself 'Dhivya RK' 19.01.2018 Selva Singh
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(S/o) Jeyaraj Singh vd;gtUf;F jpUkzk; ele;jJ.
vq;fSf;fpilNa ve;j tpjj;jpYk; xj;J
Nghftpy;iy. ehd; divorce nra;a tpUk;GfpNwd;.
vdf;F divorce nfhLf;Fk; gl;rj;jpy; ,tNuhL xU
&gha; $l [Ptdhk;rk; Ntzhk;. vdf;F vd; caph;
epk;kjp Kf;fpak;.”
Of course, she had claimed that Ex.P.9 was written under pressure.
7. Admittedly, the appellant /wife lodged complaint on
08.10.2020 before AWPS, Palayamkottai. Subsequently, she also filed
DVC No.15 of 2020 before the Judicial Magistrate, Kovilpatti. We
went through the averments set out in the Domestic Violence
complaint. A bare reading would clearly lead to the conclusion that
the relationship between the parties had completely broken down. It
is also relevant to note that the appellant had not taken any step for
re-union. She did not file any petition for restitution of conjugal
rights. She never gave any notice indicating her stand that she wants
re-union. More than anything else, she had taken back all of her jewel
on 20.01.2020 itself. The marriage had taken place on 20.01.2018
and the fact that on the second anniversary, the jewellery was taken
back would show that the situation had reached a point of no-return.
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It appears that some of her articles are still with the husband and she
indicated her willingness to take them back. The appellant
admittedly left the matrimonial home on 26.10.2019.
8. The Hon'ble Supreme Court in the decision reported in
2023 SCC OnLine SC 497 (Shri Rakesh Raman Vs. Kavitha) had
held as follows:
“20. ...
(xiv) Where there has been a long period of
continuous separation, it may fairly be concluded that
the matrimonial bond is beyond repair.
21. ... 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 complete breakdown
of all meaningful bonds and the existing bitterness
between 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
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inflicting on the other. ”
9. We are of the view that the Court below took into
account all the circumstances and chose to grant divorce. The
approach adopted by the Court below appears to be sound.
10. The Court below also rightly awarded permanent
alimony in favour of the wife. It is true that Section 37 of the Divorce
Act,1869 provides for ordering permanent alimony where a decree
is obtained by the wife. But there is no prohibition against grant of
permanent alimony in favour of the wife when she is the respondent.
We would take it that the statute is silent on this aspect. The Hon'ble
Supreme Court in the decision reported in AIR 1993 SC 1014 (M.V.
Elisabeth V. Harwan Investment and Trading (P) Ltd.) had held as
follows:-
'' 86. The judicial power of this country,
which is an aspect of national sovereignty, is vested in
the people and is articulated in the provisions of the
Constitution and the laws and is exercised by courts
empowered to exercise it. It is absurd to confine that
power to the provisions of imperial statutes of a
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bygone age. Access to court which is an important
right vested in every citizen implies the existence of
the power of the Court to render justice according to
law. Where statute is silent and judicial intervention
is required, Courts strive to redress grievances
according to what is perceived to be principles of
justice, equity and good conscience.''
11. The Hon'ble Division Bench of Madras High Court in the
decision reported in AIR 1966 Mad 225 ( Stella Pakkiam & Others
V. K.P.P.Rajiah Ratnam) and the High Court of Karnataka in the
decision reported in 2009 SCC OnLine Kar 574 (K.Kumar V. Leena)
held that the suit for maintenance filed by the wife is very much
maintainable even though the Divorce Act, 1869 is silent on this.
Coming to the case on hand, the husband had fathered a girl child
through the appellant. The child was born on 06.07.2020, much
before the parties separated. The husband does not appear to have
contributed even a single pie towards maintenance of the child. Even
while upholding the decree of the order of the Court below awarding
Rs.10 Lakhs as permanent alimony to the appellant / wife, we are of
the view that the matter cannot stop there. The husband was a
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Marine Engineer. He comes from a fairly affluent background. The
girl child will have to be properly educated. Marriage will have to be
celebrated when she reaches the appropriate age. Therefore
considering the status of the appellant / husband, it would be proper
to award a sum of Rs.20,000/- as monthly maintenance for the child.
It is not necessary to drive the appellant/ wife to file maintenance
suit independently against the husband. Since it is the husband who
wants to snap the marital tie, it is only just and proper that he is
made to bear the financial obligations for bringing up the girl child
by the appellant/ wife. Even if a care taker is appointed for bringing
up the child, one will have to pay not less than Rs.10,000/- per
month. To get admission in a decent school, one will have to pay a
few thousand rupees per month. The appellant / husband cannot
wash away his responsibility towards his child. The husband can
have grievances only against the wife. He cannot say anything against
the daughter. No offer was made by the husband that he would bring
up the child. Even if the offer is made, we would doubt his sincerity.
He has so far not bothered to come and see the child. Even before us,
he did not make any prayer for visitation. In these circumstances, we
dispose of the civil miscellaneous appeals in the following terms:-
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i) The conditional decree of dissolution of marriage passed
by the Court below is confirmed.
ii) The cross objection filed by the husband stands
dismissed.
iii) Selvasingh, the petitioner in D.O.P.No.199 of 2020 on
the file of the Family Court, Tirunelveli is directed to pay a sum of
Rs.20,000/- (Rupees Twenty Thousand only) towards maintenance
of the girl child born through his wedlock with the appellant. This
liability will commence from 01.03.2025 onwards.
No costs.
(G.R.SWAMINATHAN, J.) & (R. POORNIMA, J.)
26th February 2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
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To:
1. The Judge,
Family Court, Tirunelveli
2. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
AND
R.POORNIMA, J.
PMU
C.M.A.(MD)Nos.886 & 986 of 2022
26.02.2025
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