Madras High Court
N. Subramani vs T. Shantha on 4 September, 2007
Equivalent citations: (2007)5MLJ1397
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. The unsuccessful appellant/husband who has lost his case before both the courts below has preferred this Civil Miscellaneous Second Appeal against the concurrent findings rejecting his case for divorce on the ground of cruelty and desertion.
2. The case in brief is as follows:
The petitioner and respondent are husband and wife. The marriage between them was performed on 30.04.1975 at Thimmarajapuram in Thirunelveli District according to Hindu rites and customs in the presence of the elders. After the marriage, they set up their family at Chengalpattu and thereafter at Chrompet as the petitioner is working at Madras. They lived happily till the birth of a female child on 18.02.1977 at Quilon in the residence of the respondent's parents. The petitioner and the respondent are employed respectively, in Chengalpattu Medical College as Assistant and as Clerk in Chengalpattu Post Office. The respondent left the matrimonial home for the firs time on 23.03.1980, and from then onwards, the dispute started. Thereafter, the husband filed O.P. No. 249 of 1980 on the file of Subordinate Judge, Chengalpattu, for restitution of conjugal rights and obtained a decree for restitution of conjugal rights. Aggrieved over the same, the wife filed an appeal in C.M.A. No. 8 of 1982 on the file of District Judge, Chengalpattu, who in turn, confirmed the judgment and decree of the trial Court, dismissing the appeal. The wife neither preferred second appeal nor did she join the husband.
3. Thereafter, on 03.11.1982, the husband filed H.M.O.P. No. 69 of 1982 for the relief of divorce on the ground of desertion of the respondent/wife irrespective of decree for restitution of conjugal rights. The wife appeared before Court and made an endorsement that she was willing to join with her husband and in view of the endorsement, the said petition for divorce was dismissed even at the first hearing date itself. Thereafter the parties set up the family at Ayanavaram and the second daughter was born to them. Subsequently, the parties shifted their residence to Madipakkam. Again, on 15.06.1990, the appellant/husband was driven out of matrimonial home and inspite of some elders tried to pacify them, the wife did not agree for re-union. Thereafter, the husband issued lawyer's notice on 01.08.1990 stating the breaking away of marriage tie for which, the wife through her counsel sent a reply on 20.08.1990 seeking for maintenance for her daughters and also lodged a compliant to the Dowry Cell. The petitioner-husband issued rejoinder on 18.09.1980. On the filing of M.C.No:559 of 1992 by the respondent/wife, the Family Court at Madras ordered interim maintenance of Rs. 350/- for each daughter. Thereafter the husband wrote several letters to the wife in order to maintain cordial relationship with him. But all his efforts ended in vain. Hence, the petitioner filed H.M.O.P. No. 95 of 1992 on the file of the Subordinate Judge, Poonamallee for divorce on the ground of cruelty and desertion. The wife contesting the same, filed her counter statement. Thereafter, the trial Court, after hearing both sides, dismissed the divorce petition by judgment dated 30.07.1996 holding that there is no evidence to prove that the respondent treated the appellant with cruelty so as to offer him the relief of divorce. The trial court also held that the appellant has failed to prove the fact of desertion on the part of the respondent since both of them are living separately only due to their occupations at different places. Thereafter, the husband filed C.M.A. No. 19 of 1997 before the District Judge, Chingleput, who in turn dismissed the appeal thereby confirming the order of the trial Court by judgment dated 22.12.1997. Aggrieved over the said judgment, the husband has preferred this Civil Miscellaneous Second Appeal before this Court.
4. Heard the learned Counsel for the appellant. Though notice was served on the respondent, she has not chosen to appear either in person or through Counsel. Hence, this Court, left with no option, after hearing the learned Counsel for the appellant and perusing the materials available on record, delivers this judgment.
5. Learned Counsel for the appellant would submit that since the date of marriage, the respondent-wife had been totally unfaithful, inimical, sadistic and antagonistic and above all, total hostile. The respondent is opposing and contesting the proceedings from the year 1980 onwards filed by the appellant/husband for the relief of restitution of conjugal rights and failed in her attempts and thereafter, she preferred an appeal in C.M.A. No. 8 of 1982, which also ended in vain. Thereafter, she did not resume her matrimonial home. The said attitude of the respondent-wife led the appellant to file O.P. No. 69 of 1982 for the relief of divorce on the ground of desertion and failing to obey the orders of the restitution of conjugal rights. In the said petition, the respondent-wife appeared and made an endorsement to the effect that she was willing to live with the appellant and in the said circumstance, the said petition was dismissed. But after a birth to the second baby, again she deserted the appellant. Thereafter, the appellant issued notice to the respondent and she replied with false and frivolous allegations. After giving opportunities to her by way of writing letters, the appellant filed H.M.O.P. No. 95 of 1992 for divorce on the ground of cruelty and desertion. However, the trial Court dismissed the divorce application. Aggrieved over the said order, the appellant preferred an appeal in C.M.A. No. 19 of 1997 which also ended against the appellant.
6. According to the learned Counsel for the appellant, the Court below has failed to appreciate Exs.A1 to A5 which would establish the arrogant conduct of the respondent-wife and Exs.B.1 to B.5 would also clearly establish the keen desire of the appellant to live with the respondent-wife.
7. Considering the submissions of the learned Counsel for the appellant, upon perusing the materials available on record, it could be seen that after the birth of first female child in the year 1977, misunderstanding arose between the spouses and the respondent-wife left the matrimonial home even in the year 1980, which resulted in filing a petition by the appellant-husband for the relief of restitution of conjugal rights and the litigation ended in favour of the appellant before both the Courts below. Even after the decree of the Courts below for restitution of conjugal rights, she did not choose to resume the matrimonial home, but filed an appeal as against the decision for restitution of conjugal rights. After writing several letters to the respondent inviting her to the matrimonial home, to which the respondent did not accede, the appellant ultimately filed H.M.O.P. No. 69 of 1982 for dissolution of their marriage on the ground of desertion and cruelty. The petition was dismissed at the instance of the respondent-wife who made an endorsement to the effect that she was willing to join her husband. Of course she joined with the appellant for a short period and after the birth of the second female child, she started to leave the matrimonial abode, and when the elders tried to pacify, she did not agree for re-union. The conduct of the respondent in refusing to obey the decrees of the Courts below, would establish her uninterestedness in living with the appellant.
8. Learned Counsel for the petitioner would submit that when the marriage had irretrievably broken down, the parties are entitled for divorce as laid down by the Apex Court in Durga Prasanna Tripathy v. Arundhati Tripathy . The Apex Court in Naveen Kohli v. Neelu Kohli , while following the earlier decision, the Apex Court after referring to nearly 24 other earlier decisions, came to the conclusion that irretrievable breakdown of the marriage can be taken as one of the ground for grant of divorce.
9. In the latter decision, referred to above, the Apex Court while dealing with cruelty, observed that Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. In the case on hand, though both parties accused each other, it cannot be disputed that the conduct of the respondent/wife amounts to meeting out of mental cruelty to the appellant/husband.
10. As regards the aspect of irretrievable breakdown of the marriage, the Apex Court further observed that once the parties have separated and the separation has continued for a sufficient length of time and once of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
11. In view of the fact that the parties have been living separately for more than 16 years, and prior to that viz., even from the year 1980 onwards the wife has been used to go away from the matrimonial abode, it has to be necessarily construed that the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
12. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. Preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties not to grant a decree of divorce would be disastrous for the parties.
13. The courts have to consider that a human problem can be properly resolved by adopting a human approach. Looking to the peculiar facts of the case, the courts below are not justified in not granting the divorce decree. In my opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.
14. From the decisions cited above, it is clear that the irretrievable breakdown of marriage can be taken as a ground for grant of divorce decree. Further, when parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that the marriage has broken down irretrievably. The principles laid down in the decisions cited supra are squarely applicable to the facts of the case on hand as well.
15. The facts and circumstances of the present case disclose that reunion is impossible. It is not in dispute that both the parties are living away for the last 16 years and the dispute has started even as early as in the year 1980. It is also true that a good part of the lives of both the parties has been consumed in the litigations either for restitution of conjugal rights, or petition for maintenance or for divorce. The end is not in sight. A workable solution is certainly not possible at this stage. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. It is also a matter of record that dislike for each other was burning hot. It is also pertinent to point out that the respondent/wife opposing the decision in allowing the earlier O.P., filed by the appellant for restitution of conjugal rights preferred an appeal, and of course she did not succeed in her attempt. Though she joined for a short period, again left the matrimonial home and inspite of conciliation efforts by the appellant as well as the elders of both the parties she did not join the appellant. Thereafter only, the appellant, having found the respondent's disinclination filed the subsequent O.P., for divorce. Though the ground of cruelty is not proved, the continuous desertion by the respondent/wife for nearly 16 years as on today is the deciding factor for grant of divorce decree. It may be noted that is no representation for the respondent/wife in this appeal, which only shows the non-objection on the part of the respondent/wife in granting a decree of divorce. Therefore, there is no other option except to allow this appeal and set aside the judgment of the first appellate court.
16. In the result, the Civil Miscellaneous Second Appeal is allowed reversing the judgment and decree of the first appellate court. The CMA.No:19 of 1997 shall stand allowed and there will be a decree of divorce as prayed for. No costs.