Madras High Court
T.Gopalakrishnan vs Murugeswari on 10 September, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/09/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.S.A.No.36 of 1999 T.Gopalakrishnan ... Appellant/ Petitioner Vs. Murugeswari ... Respondent/ Respondent Civil miscellaneous second appeal has been filed under Section 28 of Hindu Marriage Act read with Section 100 of Civil Procedure Code, against the judgment dated 07.09.1999 passed in C.M.A.No.16 of 1999 by the Principal District Judge, Virudhunagar at Srivilliputhur, confirming the order dated 13.04.1999 passed in H.M.O.P.No.7 of 1999 by the Subordinate Court, Sivakasi. !For appellant ... Mr.S.Meenakshi Sundaram ^For respondent ... Mr.K.Govindarajan :JUDGMENT
Challenge in this civil miscellaneous second appeal is to the concurrent judgments passed in H.M.O.P.No.7 of 1999 by the Subordinate Court, Sivakasi and in C.M.A.No.16 of 1999 by the Principal District Court, Srivilliputhur.
2.The appellant herein as petitioner has filed the present petition under Section 13(1)(1a)(1b) of the Hindu Marriage Act, 1955, praying to dissolve the marriage held between the petitioner and respondent.
3.It is averred in the petition that the marriage between the petitioner and respondent has held as per the Hindu rites and custom on 25.10.1993. The petitioner has spent marriage expenses. After marriage, both the petitioner and respondent lived for a short span in the house of the petitioner. At the time of marriage the petitioner has served in Defence at Jammu. The marriage between the petitioner and respondent has been arranged by the parents of them. Even during first-night the respondent has expressed his unwillingness to live with the petitioner and further she stated that due to compulsion of her parents, she conceded to marry the petitioner. Both the petitioner and respondent have lived only for a period of ten days. The respondent has abruptly left marital abode and gone to the house of her parents. Despite of sincere efforts, the respondent has refused to come and live with the petitioner and subsequently the petitioner has joined his duty. During September 1994, he has come down to his native place and a panchayat has been held, wherein also the respondent has refused to live with the petitioner. On 11.11.1994 at about 12.00 noon, the respondent has tried to commit suicide and fortunately she has been saved. The respondent has left marital abode without sufficient cause and thereby she caused cruelty to the petitioner and since the respondent has left marital abode and lived separately and since she caused cruelty to the petitioner, the present petition has been filed, praying to annul the marriage held between the petitioner and respondent.
4.It is stated in the counter filed on the side of the respondent that after marriage both the petitioner and respondent have lived as husband and wife for a period of twenty days. The petitioner has given assurance to bring the respondent to his place of work. During September 1994, the petitioner has come down to his native place. The respondent and his family members have accentuated the petitioner to live with the respondent. But, the petitioner has expressed his unwillingness by stating that the respondent is not suitable to his mother. Having enraged at the conduct of the petitioner and also due to frustration, the respondent has attempted to commit suicide. The respondent is always ready and willing to live with the petitioner and there is no merit in the petition and the same deserves dismissal.
5.The trial Court, after considering all the evidence available on record, has found that the grounds mentioned in the petition for getting annulment of marriage held between the petitioner and respondent are not sufficient and ultimately dismissed the petition. Against the order passed by the trial Court, the petitioner as appellant has preferred C.M.A.No.16 of 1999 on the file of the first appellate Court. The first appellate Court, after hearing both sides and upon perusing all the relevant record, has also concurred with the findings arrived at by the trial Court and ultimately dismissed the appeal. Against the concurrent judgments, the present Civil Miscellaneous Second Appeal No.36 of 1999 has been preferred on the file of this Court.
6.The present petition has been filed mainly on two grounds. The first and foremost ground is that from the inception of marriage the respondent has caused cruelty to the petitioner and the second ground is that the respondent without sufficient cause has deserted the petitioner. The Courts below have concurrently found that the grounds mentioned in the petition for getting annulment of marriage held between the petitioner and respondent are erroneous.
7.The learned counsel appearing for the appellant/petitioner has repeatedly contended that the marriage between the petitioner and respondent has been performed on 25.10.1993 and after marriage, both of them have lived for a period of ten days and subsequently both of them have not lived as husband and wife and despite of sincere efforts made by the petitioner, the respondent has refused to live with him and therefore, the marriage between the petitioner and respondent has become irretrievably broken. Under the said circumstances, the marriage between the petitioner and respondent can be dissolved.
8.Per contra, the learned counsel appearing for the respondent/respondent has also equally contended that the grounds mentioned in the petition for getting annulment of marriage have not been proved on the side of the appellant/petitioner and the Courts below have concurrently rejected the reasons mentioned in the petition and the respondent is always longing for the company of the petitioner and the petitioner has firmly expressed his unwillingness to live with the respondent and even now the respondent is ready to live with the petitioner and therefore, the concurrent judgments passed by the Courts below are not liable to be interfered with.
9.The learned counsel appearing for the appellant/petitioner has mainly advanced his argument on the ground that the marriage between the petitioner and respondent has become irretrievably broken. It is also an admitted fact that during the pendency of the present civil miscellaneous second appeal, this Court has exercised all efforts to settle the dispute that exists between the petitioner and respondent and this case has also been referred to the Mediation and Conciliation Centre and both the petitioner and respondent have appeared and a report has been received from the Medication and Conciliation Centre to the effect that the dispute which exists between the petitioner and respondent has not been settled.
10.As pointed out by the learned counsel appearing for the appellant/petitioner, the marriage between the petitioner and respondent has been performed on 25.10.1993 and both of them have lived for a short span of ten days as husband and wife and subsequently both of them have not lived together. Therefore, for a period of fifteen years, both the petitioner and respondent are living separately. It is not an adulation to say that the life of the petitioner and respondent is being wasted for a period of fifteen years without getting blossoming. Further there is no scope for reunion. Since the petitioner and respondent have been living separately for a period of fifteen years by way of wasting their life and since there is no scope for reunion, the Court can easily come to a conclusion that the marriage between the petitioner and respondent has become irretrievably broken.
11.The learned counsel appearing for the appellant/petitioner in support of his contention has accited the following decisions;
a)The first and foremost decision is reported in AIR 2008 Andhra Pradesh 134 (Smt.Varalaxmi Charka Vs. Satyanarayana Charka) wherein it has been held as follows;
"Where the husband was citizen of USA and had settled in New York which has a cold climatic weather conditions through out the year and the wife was a patient of Bronchial Asthma and for short span they lived together their relationship was marred by asthmatic attacks suffered by wife requiring frequent medical attention and from year 1991 onwards they were living separately at places which can be described as poles apart, it could be construed that their marriage had broken down irretrievably warranting its dissolution."
b)The second decision is reported in I (2006) DMC 582 (Jharkhand High Court) (Shankar Chakravarty Vs. Puspita Chakravarty) wherein it has been held that no chance that they will be willing to reside together or settlement. Both the parties are permanently allowed to live separately from each other.
C)The third decision is reported in I (2008) DMC 867 (Madhya Pradesh High Court) (Rajendra Prasad Vs. Chetna) wherein it has been held that marriage of respondent and appellant is irretrievably broken, hence, decree of divorce can be granted.
d)The fourth decision is reported in 2006(1) Law Weekly 162 (Durga Prasanna Tripathy Vs. Arundhati Tripathy) wherein the Honourable Apex Court has held that marriages are made in heaven. Both parties have crossed the point of no return and a workable solution is certainly not possible and parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Divorce can be granted on the ground that the marriage in question has become irretrievably broken.
12.The learned counsel appearing for the respondent/respondent has also contended that if any marriage is irretrievably broken, the same is not a ground for granting divorce, but, the Honourable Apex Court by virtue of Article 142 of the Constitution of India can grant divorce on the ground that the marriage in question is irretrievably broken.
13.Of-Course it is true that if any marriage is irretrievably broken, the same is not a ground for getting divorce under Section 13 of the Hindu Marriage Act, 1955. In the decision reported in 2006 (1) Law Weekly 162 (Durga Prasanna Tripathy Vs. Arundhati Tripathy) the concerned Family Court has granted divorce mainly on the ground that a workable solution is certainly not possible. The concerned High Court has reversed the order passed by the Family Court. But, the Honourable Apex Court has set aside the order passed by the High Court and restored the order passed by the Family Court. Therefore, it is quite clear that in the interest of justice and also in the interest of parties, the Court can grant divorce mainly on the ground that the marriage in question is irretrievably broken, even though the same is not found as one of the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955.
14.In the instant case as expounded earlier, the marriage between the petitioner and respondent has been performed in the year 1993 and after marriage, both of them have lived as husband and wife only for a short span of ten days and after that both of them have not lived as husband and wife, and for the past one and half decades the bright life of the petitioner and respondent has become wasted without getting jubilation in their life. Therefore, it is totally meaningless and also useless to keep the marriage between the petitioner and respondent alive with a hope that both of them may unite in future. In fact, this Court has adopted all methods known to law so as to settle the dispute that exists between the petitioner and respondent and all attempts made by this Court have become futile. Therefore, it is quite clear that the marriage between the petitioner and respondent can be dissolved so that both of them can lead their future life with happiness.
15.In the light of the discussion made earlier, it is very clear that the argument advanced by the appellant/petitioner is really having attractive force and whereas the argument advanced by the learned counsel appearing for the respondent /respondent is sans merit.
16.In fine, this civil miscellaneous appeal is allowed without costs. The concurrent judgments passed in H.M.O.P.No.7 of 1999 by the Subordinate Court, Sivakasi, and in C.M.A.No.16 of 1999 by the Principal District Court, Virudhunagar at Srivilliputhur are set aside and the petition filed in H.M.O.P.No.7 of 1999 is allowed without costs.
gcg To
1.The Principal District Judge, Virudhunagar at Srivilliputhur.
2.The Subordinate Judge, Sivakasi.