Madras High Court

S.Karunakaran vs Nirmaladevi on 12 March, 2025

                                                                                           C.M.S.A.(MD)No.42 of 2019


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 12.03.2025

                                                       CORAM:

                           THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

                                           C.M.S.A.(MD)No.42 of 2019

                    S.Karunakaran                                                     ... Appellant


                                                             Vs.


                    Nirmaladevi                                                   ... Respondent



                    PRAYER: Civil Miscellaneous Second Appeal filed under Section 28 of
                    Hindu Marriage Act, 1955 r/w. Section 100 of Code of Civil Procedure , to
                    set aside the fair and decreetal dated 23.03.2015 made in H.M.C.M.A.No.
                    14 of 2012 on the file of Principal District Court, Theni, confirming the
                    Judgment and Decree dated 14.10.2011 made in H.M.O.P.No.27 of 2009
                    on the file of the Sub Court, Theni, and to allow the same with cost by
                    allowing the appeal.



                                      For Appellant            : Mr.K.R.Laxman

                                      For Respondent           : Mr.P.Mahendran




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                                                                                           C.M.S.A.(MD)No.42 of 2019


                                                          JUDGMENT

This Civil Miscellaneous Second Appeal is filed as against thefair

and decreetal dated 23.03.2015 made in H.M.C.M.A.No.14 of 2012 on the

file of Principal District Court, Theni, confirming the judgment and decree

dated 14.10.2011 made in H.M.O.P.No.27 of 2009 on the file of the Sub

Court, Theni.

2. For the sake of convenience, the parties herein are referred to, as

per their rank before the trial Court.

3. The brief case in a nutshell are as follows:

(i) The petitioner is the husband and the respondent is the wife. The

petitioner husband has laid a petition for divorce on the grounds of cruelty

and desertion. The marriage between the petitioner husband and the

respondent wife was an arranged marriage solemnized on 10.06.2007 at

Thuraiyappanadar Thirumanamandapam, Bodinayakanur, according to the

Hindu Customs and Rites. After marriage, the the couple began their

matrimonial life at the petitioner husband's house and out of the said

wedlock, the respondent gave birth to a male child on 05.12.2008.

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(ii) The allegation of the petitioner husband is that from the very

beginning of the marriage, the respondent wife was not cordial towards

him and led the matrimonial life with reluctance and hesitation. The

marriage was consummated only after a period of one month and even

then, it was done without emotional involvement and with much hesitation

on the part of the respondent wife. Within a span of five months of the

marriage, the respondent wife became pregnant. On 30.07.2008, the

respondent's mother took her to the respondent's maternal home, assuring

the petitioner that the respondent will be brought back to her matrimonial

home within a week. However, after the period of one week, when the

petitioner husband contacted the respondent she informed him that he

should speak to her father regarding her return. After few months later, the

respondent's baby shower (valaikaapu) was conducted at her maternal

home.

(iii) However, the respondent's parents did not inform the petitioner

or his relatives about the conduct of the said baby shower ceremony at the

respondent's maternal home. On coming to know about this function

conducted in the respondent's maternal home, the petitioner along with

Rajaram Srinivasan, Sethu, Mookaiah from Periyakulam, approached the

respondent's parents and requested them to send the respondent wife back

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to the petitioner's house. However, the respondent's father blatantly refused

to respect the said request and instead demanded that all the Sridhana

(dowry) articles be returned to the respondent.

(iv) Subsequently, a male child was born on 05.12.2008. However,

the said information was also not informed by the respondent to the

petitioner. When the petitioner and his parents expressed their intention to

visit the child during the month of Tamil month 'Thai', the same was not

received positively by the respondent's parents, and a positive reply was

not further communicated from their end. However, the respondent's father

went to the extent of threatening the petitioner that they would initiate

legal proceedings under the Dowry Prohibition Act, 1960 and Protection of

Women from Domestic violence Act, 2005, if any attempt was made to

bring the respondent wife back to her matrimonial home. The respondent

wife has miserably failed in fulfilling her duties as a wife to the petitioner.

Consequently, the petitioner issued a legal notice on 03.02.2009 seeking

restitution of conjugal rights. However, the same was not responded with

an appropriate reply by the respondent wife. Hence, he filed a petition for

divorce and pressed for allowing the civil miscellaneous second appeal.

(v) The respondent has filed a counter, refuting all the allegations

made by the petitioner in his petition for divorce. The respondent wife has

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categorically refused the allegations that she had been reluctant to live a

peaceful life from the first instance and also the other allegations about her

family members, who have not cooperated for the reunions of the

petitioner and the respondent. It has been further submitted that the

respondent was subjected to heinous domestic violence, on 30.07.2008 in

the presence of her mother during a visit while the respondent was

pregnant. When the respondent's mother intervened and questioned about

the reason for the physical assault, the petitioner went to the extent of

abusing the respondent's mother as well. The petitioner's parents remained

as mute spectators during the incident and hence, the respondent's mother

with a broken heart had returned to her house. Thereafter, within a week of

this incident, the petitioner himself allegedly humiliated the respondent

and left her at her maternal home and went off.

(vi) The respondent has further submitted that the petitioner is a

person of higher social status and better economic condition compared to

the respondent. From the very beginning of his marriage with the

respondent, he continuously subjected her to dowry abuse, demanding

more dowry, ridiculing the dowry which was provided to her at the time of

marriage. It is also stated that whenever the respondent's parents

approached the petitioner and his family for baby shower (valaikaapu), the

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same was outrightly rejected by the petitioner and his parents. Hence,

without the presence of the petitioner, the baby shower (valaikaapu) was

formally conducted. Subsequently, the respondent gave birth to a male

child on 05.12.2008. The respondent wife has denied all allegations of

desertion in the said counter affidavit.

(vii) On the basis of the pleadings, the learned Trial Court proceeded

to examine four witnesses on the side of the petitioner and marked Ex.P1

to Ex.P.7. Two witnesses were examined on the side of the respondent and

no documents were marked on the side of the respondent.

(viii) On the basis of the arguments of the respective parties,

evidence deposed and the materials available on record, the Trial Court

proceeded to conclude that the petitioner had not made out any case for

grant of divorce on the ground of cruelty.

(ix) In the absence of cogent and convincing evidence to prove the

factum of cruelty which was subsisting in the matrimonial life between the

petitioner and the respondent, the learned trial Court negated the

petitioner's claim and dismissed the H.M.O.P.No.27 of 2009 on the file of

the Sub Court, Theni. Challenging the same, H.M.C.M.A.No.14 of 2012

was preferred by the petitioner husband before the Principal District Court,

Theni. The learned First Appellate Court do not find any valid reason to

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interfere with the judgment and decree passed by the learned Trial Court

and accordingly, dismissed the H.M.C.M.A.No.14 of 2012. Challenging

the same, the present civil miscellaneous second appeal is filed.

4. The learned Counsel appearing for the appellant categorically

submitted that the marriage between the petitioner and the respondent was

solemnized on 10.06.2007, and the respondent wife voluntarily left her

matrimonial home on 30.07.2008. Despite all efforts by the petitioner

husband to re-join with the respondent, those efforts have been failed. The

parties have been living separated for the past 17 years and this prolonged

separation has caused a mental condition that it is no longer feasible for the

petitioner husband to continue living with the respondent wife. The

marriage has reached a point of no return. He further relied upon the

judgment passed by the Hon'ble Division Bench of this Court in the case of

R.Thangamani @ Mainavathi Vs Satish Kumar dated 22.09.2017, wherein

the Hon'ble Division Bench of this Court relying upon the judgment of the

Honourable Apex Court in the case of K.Srivas Rao Vs. D.A.Deepa

reported in 2013 (5) SCC 226 submitted that, the Honorable Apex Court

considering the fact of a prolonged separation of more than 10 years which

had created an unbridgeable distance between the couple, proceeded to

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dissolve the marriage and passed the judgment allowing the petition for

divorce. Hence, the learned Counsel pressed for allowing this case

following the mandates laid down by the Honourable Supreme Court in the

aforesaid judgment.

5. Per contra the learned Counsel appearing for the respondent has

categorically submitted that each and every case has to be dealt with in

accordance with the facts and circumstances of the said cases and as far as

matrimonial cases are concerned, the facts and circumstances of any other

case cannot be fitted into the facts and circumstances of another case as

such, the judgment relied upon by the learned Counsel for the appellant

could not be made applicable to the facts and circumstances of this case. In

the aforesaid case the petition for divorce was laid on the ground of

desertion and as far as this case is concerned, the case is one where the

divorce has been sought on the grounds of desertion as well as cruelty,

wherein the factum of cruelty cannot be attracted because the couple had

separated within a period of one year from the date of marriage. Further,

the learned Counsel submitted that the appellant had miserably failed to

prove the factum of cruelty before the learned trial Court with appropriate

evidence and proper document and pressed for dismissal of the appeal

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6. Heard the learned Counsel for the appellant and the learned

Counsel for the respondent and carefully perused the material available on

record.

7. It is the case where the petitioner husband and the respondent wife

had separated within one year from their marriage. The allegation of the

appellant husband is that the respondent has treated him with cruelty,

leading to the marriage reaching a point of no return. However, upon a

careful perusal of the pleadings of the appellant husband in the petition for

divorce would not reveal even a single incident which could attract the

ground of cruelty. The only issue which has been pointed out in the

petition for divorce is that the respondent had left her matrimonial home

with her mother on 30.07.2008 by informing the petitioner that she will

return shortly. However, she had never returned and her parents have

conducted the Valaikaapu function in the absence of the petitioner and his

parents and thereafter, the respondent had never turned up to her

matrimonial home. It was also further pleaded that the efforts of

reconciliation taken by few persons of common interest also failed due to

the non-cooperation of the respondent's father. The learned Trial Court,

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after considering the evidence adduced by various witnesses, had come to

a conclusion that a case filed by the appellant husband is not a fit case to

be allowed for grant of divorce on the grounds of cruelty. The First

Appellate Court concurred with the findings of the learned Trial Court. No

major issue or incident of physical abuse or emotional abuse were pleaded

or elaborated in the evidence of the respective parties. The only allegation

raised by the petitioner husband is that the respondent wife was never

cordial from the very beginning of the marriage. However, the said

allegation has been duly denied by the respondent wife in both her

pleadings and her evidence.

8. That apart, the other major allegation of the petitioner husband is

that the respondent wife left the maternal home along with her mother. The

date of marriage was 10.06.2007 and the alleged date of separation is

30.07.2008 i.e., the date on which the petitioner husband had alleged that

the respondent wife had left the matrimonial her along with her mother. On

03.02.2009, the petitioner husband issued a legal notice seeking restitution

of conjugal rights. However, the respondent wife did not reply to the

notice. However, within three weeks from the date of issuance of a legal

notice on 27.07.2009, the petition for divorce has been laid by the

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petitioner huband before the trial Court. The legal notice dated 03.02.2009

has been marked as Ex.P.2, acknowledgment has been marked as Ex.P.3,

and the legal notice issued to the respondent's father was marked has been

Ex.P.4 and the acknowledgment dated 27.02.2009 marked as Ex.P.7. For

which the respondent wife by deposing her evidence has duly explained

the reasons for not issuing a reply notice that on receipt of the notice for

divorce, the elders of the family took effective steps through mediators for

reconciliation, as the notice was only seeking restitution of conjugal rights

and not divorce.

9. Hence, I am of the considered view that after issuing a notice for

divorce, the appellant filed a petition for divorce within three weeks from

the date of the notice. However, the respondent had filed a counter

informing her intimation to restitute her conjugal rights. In the light of this,

the appellant ought to have duly availed himself of the opportunity for

mediation through the learned Trial Court and should have made efforts to

reconcile with his wife. Having failed to do so and failing to prove the

factum of cruelty before the learned trial Court, I do not find any demerits

on the finding of the trial Court and the case is not fit for the grant of

divorce. The Hon'ble Apex Court in the case of Vishwanah Agrawal Vs.

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Sau. Sarla Vishwanat Agrawal reported in 2012 (7) SCC 288 has dealt

with the case of concurrent finding by the Trial Court and the first

Appellate Court, and has held that the High Court in the second appeal

should not disturb the concurrent finding of facts unless it is shown that

the findings recorded by the Courts below are perverse or are based on no

evidence, or that on the evidence on record no reasonable person who have

come to that conclusion. The relevant portion of the said judgment is

extracted as follows:

36. Presently to the subsequent events. The courts below have opined that the publication of notice in the daily “Lokmat” and the occurrence that took place on 11.10.1995 could not be considered as the said events occurred after filing of the petition for divorce. Thereafter, the courts below have proceeded to deal with the effect of the said events on the assumption that they can be taken into consideration. As far as the first incident is concerned, a view has been expressed that the notice was published by the wife to safeguard the interests of the children, and the second one was a reaction on the part of the wife relating to the relationship of the husband with Neeta Gujrathi.

We have already referred to the second incident and expressed the view that the said incident does not establish that there was an extra marital relationship between Neeta and the appellant. We have referred to the said incident as we are of the considered opinion that the subsequent events can be taken into

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consideration. In this context, we may profitably refer to the observations made by a three-Judge Bench in the case of A. Jayachandra (supra) :-

“The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct.”

37. We may also usefully refer to the observations made in Suman Kapur (supra) wherein the wife had made a maladroit effort to take advantage of a typographical error in the written statement and issued a notice to the husband alleging that he had another wife in USA. Thus, this Court has expressed the opinion that the subsequent events can be considered.

10. Fully fortified by the judgment of the Honourable Apex Court

and being satisfied with the concurrent findings of both the learned Trial

Court and the Apex Court, I hold that the decision of the Trial Court is well

supported by the evidence on record. In the facts and circumstances of the

instant lis in hand, I am of the considered view that even in his pleading,

the petitioner has not made any strong reasons which would contribute to

the factum of cruelty. The fact that the wife left her maternal home for the

purpose of delivery cannot, in the context of Indian society, be interpreted

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as an act of cruelty attributable to the wife. It is the responsibility of the

husband to ensure to that his wife is comfortable during her entire period

of pregnancy, including facilitating her return to her maternal home, if