Madras High Court
Jebastins vs Jino Metilda on 25 May, 2016
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
C.M.A.(MD) No.1003 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
18.10.2019 04.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A.(MD) No.1003 of 2016
Jebastins ... Appellant/Petitioner
-vs-
Jino Metilda ... Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of Divorce Act, to
call for the records pertaining to the decree and judgment passed in D.O.P.No.
35 of 2016 on the file of the Family Judge, Tirunelveli dated 25.05.2016 and
set aside the same.
For Appellant : Mr.T.A.Ebenezer
For Respondent : Mr.J.Ashok
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C.M.A.(MD) No.1003 of 2016
JUDGMENT
R. THARANI, J.
This appeal is filed against the judgment and decree passed in D.O.P.No.35 of 2010 on the file of the Family Court, Tirunelveli dated 25.05.2016.
2.The appellant/husband is the petitioner and he has filed a petition for divorce against the respondent/wife and the Family Court passed a decree of judicial separation for two years. Against which, the appellant/husband preferred this appeal.
3.The case of appellant/husband in the original petition is as follows: -
On 27.12.2012, the appellant/husband and the respondent/wife got married in St.Christ Church, Palayamkottai. On the first night itself, the respondent/wife demanded the appellant/husband to live with her parents. The appellant/husband refused for the same. On that date itself, the respondent/wife threatened to commit suicide unless he accepted to reside in 2/10 http://www.judis.nic.in C.M.A.(MD) No.1003 of 2016 her house along with her parents. The parents of the appellant/husband were residing in the ground floor and the appellant/husband and the respondent/wife were residing in the first floor. The respondent/wife never prepared food and never performed the duties of a wife. The respondent/wife was working as a college lecturer and her class will be over by 3.30 p.m. She would not return back to his house instead she return to her parents house. After completion of his work, the appellant/husband used to go and bring her home. As soon as the wife got pregnant, she went to her parents house and stayed there for five months. On 12.03.2014, on the date of baby shower, she came to the house of the husband and immediately went back to her parents house. The twins were born on 22.03.2014. The husband accompanied her to the hospital and took care of her till the date of discharge. Whenever the respondent/husband went to the house of the parents of the respondent/wife to see the children, he was insulted. She refused to come back to the house of the appellant/husband and deserted him from July 2013. The respondent/wife harassed the appellant/husband by threatening him to commit suicide. Hence, decree of divorce is necessary.
4.The counter statement given by the respondent/wife is as follows;-
3/10 http://www.judis.nic.in C.M.A.(MD) No.1003 of 2016 The marriage and the birth of the twins are admitted. The respondent/wife never demanded the appellant/husband to reside at her parent's house. She never threatened him to commit suicide. It is wrong to state that the respondent/wife used to return back to her parent's house, as soon as the college is over. It is wrong to state that the respondent/wife never performed her duties. The respondent/wife was in the house of the appellant/husband till the 5th month of her pregnancy. Since the respondent/wife was having thyroid problem, she was advised to undergo rest. Thereafter, she resigned her job. The appellant/husband and her family members were under the impression that it will be dangerous for the life of the appellant/husband, if the child was born during the month of Chithirai. Only with the consent of the appellant/husband, the respondent/wife was residing in the house of her parents. The appellant/husband demanded the ATM card of the respondent/wife and her jewels and he has deserted the wife and children leaving them at the house of her parents. The efforts taken by the paster of the church were failed. On 11.01.2016, in lok Adalath, the husband agreed to live together with the respondent/wife, but then he refused to live with her and left the respondent/wife and children at the Legal Aid Centre. Till two months after the children were born, the appellant/husband used to come to the house of the respondents parents and took care of respondent/wife and 4/10 http://www.judis.nic.in C.M.A.(MD) No.1003 of 2016 children and hence, she could not file the petition under Section 10(1) of the Act. Only due to superstitious beliefs, the appellant/husband is living separately and prays the petition to be dismissed.
5.On the basis of the pleading, the following issues were framed:-
(i) Whether the petitioner is entitled for decree of divorce ?
(ii)Whether the petitioner is entitled for cost of proceedings ?
(iii)What are the reliefs available to the petitioner ?
6.On the side of the appellant, one witness was examined as P.W.1 and four documents were marked as Exs.A1 to A4. On the side of the respondent, one witness was examined as D.W.1 and three documents were marked as Exs.B1 to B3. The Family Court after considering both the sides, passed an order of judicial separation for two years. Against which, the appellant husband herein has filed the present appeal before this Court.
7.In the grounds of appeal, it is stated that the Family Court failed to consider the physical and mental cruelty committed by the respondent/wife. The Family Court failed to consider that the respondent/wife failed to perform her duties as a dutiful wife. The respondent/wife has not 5/10 http://www.judis.nic.in C.M.A.(MD) No.1003 of 2016 taken any steps for restitution of conjugal rights. The failure of co-habitation by the respondent/wife will amount to mental cruelty to the appellant/husband. If really the respondent had an intention to live together, she would have come back to the marital home. But she lived in her parents house deserting the appellant/husband. The wife threatening to commit suicide amounts to mental cruelty. When there is no prayer for judicial separation, the Family Court passed such an order which is unwarranted. The Family Court failed to consider that the appellant/husband and the respondent/wife were already in separation for two years and divorce can be granted on that ground alone.
8.On the side of the appellant, it is stated that even after the judgment of the Family Court, the wife has not turned up to live with the appellant/husband. No such efforts were taken by the respondent/wife for the past 3 years and prayed for a decree of divorce to be granted.
9.The points for consideration are as follows:-
(i)Whether the appellant is entitled for a decree of divorce ? 6/10
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10.The marriage and performance of the baby shower function at the house of the appellant/husband are admitted by both the parties. The birth of children during March 2014, is also admitted. It is admitted that the appellant/husband went to the house of the respondent/wife, until the completion of two months after the children were born.
11.On the side of the appellant, it is stated that the Family Court failed to consider that the respondent/wife always threatened the appellant/husband to commit suicide which amounts to mental cruelty. The second allegation against the respondent/wife is that she has not performed her duties as a dutiful wife. The third allegation is that the respondent/wife deserted the appellant/husband.
12.The trial Court came to the conclusion that threatening of the respondent/wife to commit suicide was not proved by the appellant/husband. On verification of records, it is seen that the appellant has not produced any evidence to prove that the respondent threatened to commit suicide.
13.The allegation of the appellant/husband is that the respondent/wife has not taken any steps to live together and that the 7/10 http://www.judis.nic.in C.M.A.(MD) No.1003 of 2016 respondent/wife has not sent notice for restitution of conjugal rights and she has not filed any case for restitution of conjugal rights and that the appellant/husband claims desertion. The appellant/husband has not taken any steps to live with the wife and he has not sent any notice for restitution of conjugal rights. Hence, the allegation of the deseration is not proved by the appellant/ husband.
14.It is stated that no witness was examined to prove that the respondent/wife did not perform her duties and there is no proof that the respondent/wife compelled him to live with her parents. The allegation of threatening to commit suicide by the respondent/wife was also not proved by the appellant/husband through evidence. Both cruelty and desertion were not proved by the appellant/husband. The grounds of divorce are not sufficiently proved by the appellant/husband. Hence, this appeal deserved to be dismissed. Hence, it is decided that the appellant is not entitled for a decree of divorce.
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15.In the above circumstances, this civil miscellaneous appeal is dismissed and the judgment and decree passed in D.O.P.No.35 of 2010 on the file of the Family Court, Tirunelveli dated 25.05.2016 is hereby confirmed. No Costs.
[T.S.S.,J.] [R.T.,J.]
04.11.2019
Index : Yes / No
Internet : Yes / No
Mrn
To:
1.The Family Judge, Tirunelveli.
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C.M.A.(MD) No.1003 of 2016
T.S.SIVAGNANAM, J.
and
R.THARANI, J.
mrn
PRE-DELIVERY JUDGMENT
IN
C.M.A.(MD) No.1003 of 2016
04.11.2019
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