Madras High Court
T.V.Madheswaran vs Bharathi @ Angammal on 20 November, 2019
Equivalent citations: AIRONLINE 2019 MAD 1264
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.S.A.No.27 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.11.2019
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.S.A.No.27 of 2010 and
M.P.Nos.1 of 2010 and 2 of 2015
T.V.Madheswaran . .. Appellant
Vs.
Bharathi @ Angammal ... Respondent
Civil Miscellaneous Second Appeal is filed under Section 28 of Hindu
Marriage Act, 1955 r/w Section 100 of Civil Procedure Code to set aside
the Judgment and decree dated 30.06.2010 passed in C.M.A.No.68 of
2004 on the file of learned Principal District Judge, Namakkal and to
confirm the order and decreetal order dated 30.09.2003 passed in
H.M.O.P.No.88 of 2002 on the file of learned Sub Judge, Namakkal.
For Appellant : Mr.Manishankar
Sr.Counsel for
Mr.S.Natarajan
For Respondent : Mr.N.Manokaran
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http://www.judis.nic.in
C.M.S.A.No.27 of 2010
JUDGMENT
The appellant has filed this present Civil Miscellaneous Second Appeal seeking to set aside the Judgment and Decree dated 30.06.2010 passed in C.M.A.No.68 of 2004 on the file of learned Principal District Judge, Namakkal and to confirm the order and decreetal order dated 30.09.2003 passed in H.M.O.P.No.88 of 2002 on the file of learned Sub Judge, Namakkal and by raising various grounds.
2. In the H.M.O.P.No.88 of 2002 filed by the appellant/husband for Divorce under Section 13(4) and (5) of Hindu Marriage Act, 1955, it is stated by him as follows:
2.1. The appellant and the respondent got married on 26.11.1993 at Tiruchengode, according to Hindu Religious Rites and Rituals and the marriage was arranged by the elders on either side. After the marriage, both the appellant and the respondent started living in Mysore, where the husband was working. A female child, namely, Shobia was born on 06.01.1995. He has submitted that the respondent's parents have not settled with proper permanent business. As the appellant is technically qualified in rubber technology, the respondent's parents suggested that they can start one rubber industry making him as a partner. Persuaded by 2/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 the suggestions made by the parents of the respondent, the appellant resigned his permanent job at Mysore, where he was working and came and settled with his wife and child at Thiruchengode.
2.2. Though the respondent's parents initially decided to start rubber industry in the the name and style of M/s Angal Rubber Industries, later, started the Rubber Industry in the name and style of M/s Aandalashmi Rubber Industries, making the respondent, the respondent's parents, respondent's brother and appellant himself as five total partners. They have applied for loan at Tamilnadu Industrial Investment Corporation and they also submitted a project report and later a sum of Rs.1 Crore and 5 Lakhs was sanctioned approving the project and directed the partners of the above company to invest a capital amount of Rs.35 Lakhs, being 1/3rd of total investment. Since the parties could not deposit 1/3rd of the total investment, which is Rs.35 Lakhs, the project was stalled. So, the appellant was constrained to leave for Chennai cursing his own fate and sought an appointment at Chennai on 28.06.1996.
2.3. The appellant has sent a request to the respondent to come and settle down in Chennai and the respondent did not agree. Thereafter, the respondent joined her parents, since that day for many number of attempts made by the appellant to contact the respondent, there has been 3/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 absolutely no response or reply from the respondent.
2.4 Further, the appellant had made number of attempts through all their relatives to speak to the respondent and her parents for the purpose of continuing a happy family life. For all these attempts the respondent's parents have been negativing the approach stating that as per horoscopic position of the child, Shobia, the family life would not be good till January 1999 and also suggested that they would send the respondent and the child after January 1999. After January 1999, when the common relatives approached the respondent's parents, they turned them out stating that the reunion would not be possible. Thereafter, many relatives, viz., uncle, aunt, maternal uncle, aunt, respondent's maternal uncle respondent's mother's younger sister approached the respondent's parents for setting up a family life, but there was a blunt denial on the side of the respondent.
2.5.The respondent's parents had been propagating amongst their relatives that the appellant had been demanding Rupees Ten Lakhs as dowry from them and also spread the news that the appellant had beaten the respondent and ill-treated her with all physical and mental cruelty and because of this, the appellant and his family image have been totally ruined among the relatives circle and due to the attitude of the respondent and her 4/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 parents, the appellant had suffered serious mental agony. That apart, the respondent's parents also prevented the appellant from meeting his own child.
2.6 For all the attempts made by the appellant for re-union, the respondent's parents have given only negative answer and a blunt denial.
Whenever the appellant attempted to speak to the respondent over telephone, the respondent either made herself not available or was made not available to attend the telephone calls. Frustrated by this, as a last chance, the appellant has sent a detailed letter of request running to 10 pages and posted it on 22.12.1999 by registered post acknowledgment due. The said registered letter was refused to be received and hence came back to the appellant confirming that the respondent has got absolutely no interest in joining the appellant. The respondent is living away from the appellant since 27.06.1996 and has not joined him thereafter for no fault on the part of the appellant. Even for the letter of request dated 22.12.1999, there has been only a total and blunt refusal to receive the letter. Hence for all the above stated reasons, the appellant prayed for divorce on the ground of desertion and mental cruelty. 5/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010
3. The counter statement has been filed by the respondent to the said H.M.O.P. denying all the allegations except which was admitted by her and the same runs as under:
3.1. The respondent denies the statement that their parents are not having permanent address and also denies the allegation that the respondent's parents have compelled him to resign the permanent job at Mysore and making him to come and settle at Thiruchengode. As per his request, they tried to start Rubber Industries, which did not work out due to the amount of Rs.35 Lakhs to be paid as investment. The respondent's parents never insisted him to go to Chennai, but the appellant himself stated that he would seek an appointment at Chennai. Further, it is false to state that the respondent would stay back with her parents and join him after he could get established at Chenani.
3.2. The respondent submits that her parents presented 75 soverigns of gold ornaments and house hold utensils and household articles worth about Rs.40,000/- at the time of marriage. After a month from the date of marriage, the appellant left the respondent in his parent's house and he went to Mysore for his job as a supervisor in a company and was getting a salary of nearly Rs.3,500/- and while the respondent was in 6/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 her in-laws house, her sister-in-law and brother-in-law used to tease her saying that they were all educated while the respondent is not an educated person, hence she was forced to do all sorts of house hold works, while the in-laws will watch television.
3.3. Further, the respondent had stated that her in-laws insisted her parents to gift a car to the appellant in the month of Thai as ''Pongal seer'' and after the demand, household utensils worth Rs.5,000/- and one soverign of gold and dresses were presented to them. Apart from that, the appellant's parents had further insisted the respondent to get Rs.50,000/-
from her parents and the respondent obtained Rs.50,000 from her parents and had given the same to appellant. From and out of the above amount, a sum of Rs.30,000/- was given to the appellant's mother and Rs.20,000/- was taken by the appellant to Mysore and the said Rs.30,000/- was given to the appellant's brother to set up a T.V.Shop. Further, the parents of the appellant insisted the respondent to get Rs.15,000/- to purchase a two wheeler and the parents of the respondent paid the same. The respondent invited the appellant for Adi festival. At that time, the appellant demanded two sovereigns of gold and said that if he is invited for any festival, he must be given gold sovereigns and money for dress materials. Therefore, the appellant was presented with five sovereigns of chain for Deepavali festival 7/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 and in the subsequent years, the appellant was presented with one sovereign of gold and Rs.4,000/- for dress materials.
3.4 During October 1994, the respondent came to her parents house for delivery and on 06.01.1995, a female child namely, Shobia was born at a Hospital in Erode and the respondent was hospitalised for two weeks. At the time of discharging the respondent from the hospital, the appellant went away from the hospital without paying the hospital charges and hence, the father of the respondent had paid the hospital charges and medical charges of Rs.15,000/- and took the respondent to his home and the respondent and child were looked after only by the parents of the respondent.
3.5. The respondent further states in the counter that she and her child were taken to Mysore, at that time, the appellant insisted the parents of the respondent to present gold to the child and they presented 10 sovereigns of gold. To establish a separate small industry either at Mysore or at Thiruchengode, the appellant started torturing the respondent saying that within two are three months, he must be given a positive answer in order to start a business and the appellant used to say quite often that all his relatives are rich, so he must also become rich within a short period. 8/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 Therefore, the respondent came to Tiruchengode and revealed the tortures of the appellant to her father and requested him to arrange money for business, the respondent's father spent nearly 5 lakhs of Rupees for setting up of the business. However, they were not able to invest 35 lakhs of Rupees because they could not get any money for rotation.
3.6. The respondent further stated that the appellant had demanded that all the properties should be transferred in his name after partitioning the properties belonging to the respondent's father. Eventhough the respondent is a only daughter and the respondent's brother is a only son to her parents, as the brother of the respondent is a student studying in engineering college, the properties could not be divided.
3.7. The appellant was not inclined to work at Mysore due to inability in working during night shifts, he resigned the job in the month of February 1996 and the parents of the respondent were asked to seek a house at Thiruchengode for rent and the father of the respondent had paid a sum of Rs.10,000/- as advance for the house and the rent was fixed at Rs.1,000/- per month. The appellant and the respondent were settled at the said place in the month of February 1996.
9/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 3.8. Also, the respondent further avers in the counter that the appellant will not give any amount for the family expenses and will only insist the respondent to get money from her parents and mostly the family expenses were meted out by her parents. Lastly on 01.11.1999, the appellant took the respondent to Chennai saying that he has arranged a house at Madras. But after going to Madras, the appellant took the respondent to a house of an Advocate by stating that within 10 days, he will arrange for a separate residence provided the respondent must ask her father to come to Madras with Rs.50,000/- and if not the appellant threatened the respondent with dire consequences. Therefore, the respondent was not in a position to stay with the appellant at Madras. Hence, she requested the appellant to send her back to Tiruchengode in order to get money from her parents and attended the Deepavali festival also.
3.8. The respondent further submitted in the counter that the appellant has not come to this Court with clean hands and he has not given proper address at Madras and the given address is only the Advocate's address. After receiving the summons only, she came to understand the cunning and ulterior motive of the appellant. After perusing the Court 10/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 records only, the respondent came to understand that he had made fake documents as if the appellant had sent a letter dated 22.12.1999, but, in fact, the respondent never received any such letter nor refused to receive the said letter. Further, the appellant is a money minded person and is trying to grab the properties from the respondent's family. The respondent is always ready to live with the appellant provided the appellant must give an undertaking in writing that he will not claim any money from the parents of the respondent and he will lead a happy life without giving any torture and commit any cruelty against the respondent.
4. The Lower Court has considered the averments and counter averments and has granted decree of divorce to the parties in H.M.O.P.No.88 of 2002 on 30.09.2003. As against the same, the respondent / wife has filed a appeal in C.M.A. No.68 of 2004 before the learned Principal District Judge, Namakkal, wherein the said court after considering the materials on record has allowed the said C.M.A on 30.06.2010 in favour the respondent/wife and also ordered interim maintenance of Rs.1,250/- to the 1st petitioner therein and Rs.500/- to the 2nd petitioner therein in I.A.No.146 of 2002 and Rs.1,000/- for litigation expenses till the disposal of the appeal.
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5. Even after that, there was no re-union. Aggrieved against the said order, this Civil Miscellaneous Second Appeal has been filed by the appellant/husband stating the following grounds:
5.1 The Lower Appellate Court has come to the wrong conclusion that the respondent was always willing to live with the appellant, without any documentary evidence or in the absence of any complaint to the concerned authorities or even to any of her relatives about the alleged demand of dowry, had also erred in coming to the conclusion that the appellant demanded dowry from the respondent inspite of clear admission that she had not lodged any complaint before the police authorities or to any other relatives against the appellant about demand of dowry or any dowry harassment.
5.2 The lower appellate court failed to understand the customs prevailing amongst the community of the appellant and the respondent that the entire medical expenses for the first delivery of child should be met by the in-laws side had wrongly come to the conclusion that the Appellant did not spend any pie for the delivery of his wife.
5.3 The lower appellate court's finding that the appellant himself resigned his job at Mysore and came to Tiruchengode to set up industry is wrong. When there was no evidence regarding purchase of two wheelers, 12/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 the finding as the same was purchased by the respondent's father is based on presumption.
5.4. The appellate court failed to consider the panchayats held by the relatives of the appellant, just because the appellant was not able to say that when he actually made panchayats and by whom. The appellate court without considering the intention and attitude of the respondent, simply reading the contents of the letter dated 20.10.2001 by the respondent, erred in coming to the conclusion that the respondent is always ready and willing to live with the appellant.
5.5. The lower appellate court failed to consider that based on the advice given by the trial court with good intention, the respondent assured in the open court to join with the appellant and just threw away the assurance given by her in the open court into the dustbin when she came out of the court and simply walked away. The findings regarding payment of Rs.50,000/- which was used for T.V.Mechanic Shop is only on presumption.
5.6.The lower appellate Court failed to observe that the petition is pending for the past ten years and that the respondent herein has irretrievably broken the marital life and is interested only in getting the maintenance from the appellant herein all through the legal proceedings 13/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 without any intention of re-union. The court has failed to consider that the intention of the respondent herein is that neither she would live happily with the appellant nor she would allow the appellant to live happily.
6. Heard Mr.Manishankar, learned senior counsel for the appellant and Mr.N.Manokaran, learned counsel for the respondent.
7. The trial court has decided the issue stating that the respondent/wife did not allow the appellant/husband to take along with him and she refused to have any communication with him. Thereafter, it proceed to state that when Mr and Mrs. Rajagopal, Maternal uncle, another uncle, Gnanasekaran, Mr and Mrs.Sundar on the side of appellant and Periyappa Murugesan, Arumugam Mudaliar, S.R.Pachiyanna Mudaliar on the side of the respondent, tried to do mediation and unite them, the respondent did not had any intention to live with the husband. Further, P.W.2, Sekar, aged 67, who is working in Education Department deposed that the respondent's parents have informed him that 'if their daughter is ready and willing to live with the appellant, they have nothing to say'.
Hence the same has been accepted by the court, since the respondent has not given an immediate answer to the appellant, thereby proceeded to 14/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 state that the act of the respondent fairly shows that she did not have any intention to live with the husband. When so many persons tried to mediate, the respondent has not listened and when the court directed them to live together, only to distract the court, she has stated that she will live with the husband and outside the premises of the court, she has stated that due to the child's education, she cannot proceed immediately with her husband. The said statement would show that the respondent is not willing to live with him. But the act of the appellant would show that he is always ready and willing to accept his wife. Further, the respondent, after holding talks with the appellant at the Court had asked the appellant's telephone number and address, for which, the appellant has replied that 'she would know after coming along with him to Nagercoil.' Hence the lower court has come to the conclusion that if really the respondent had any intention to join her husband, she would have immediately taken the child and settled with her husband, instead of doing so, she has taken some lame excuses that her child's education is important and she will join him later and eventhough the letter of wife was produced, the trial court has not discussed the same in the order.
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8. On going through the facts of the case, allegations and counter allegations and as per evidence of appellant /P.W.1, it is seen that that he has written a letter during 22.12.1999 and asked the respondent to live with him and the said letter was not received by the respondent, but the respondent said to have received the letter only after coming to court and since there was no difference of opinion between her and the post master, the lower court has come to the conclusion that the respondent has wantonly refused to receive the same and only due to the act, the appellant was forced to file a petition for divorce. Since the appellant/husband wanted to live with the wife and it is only the respondent stayed away from from him, which would cause mental agony and hardship to the appellant and held that due to the said acts, the appellant is entitled for getting decree of divorce.
9. The Appellate Court has framed a issue, whether the appellant has wantonly filed a petition for divorce on the basis of desertion and cruelty and stated that it is for the appellant to prove the factum of separation and the intention to bring co-habitation permanently to an end. Further, the relevant portion enacted in the Judgment 'Bombay Hindu Divorce Act (12 of 1947). S.3(d)-Desertion - Essentials of Inference 16/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 from facts and circumstances Burden of Proof - (Divorce) - (Evidence Act (1872) S.101 to 104) stated by the Appellate Court has been reiterated as follows:-
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1)the factum of separation and (2) the intention to bring cohabitation permanently to an end (antimus deserendi) Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of contest, and (2) absence of conduct giving reasonable cause to the spouse leaving the material home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. Tje appellant also cited 2001(8) Supreme 434 Adhyatma Bhattar Alwar V. Adhyatma Bhattar Sri Devi "(i) Hindu Marriage Act, 1955 - Section 13(i) (ib) r/w explanation - Divorce on ground of desertion - The essential ingredients of the ground.
Held: 'Desertion' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1) The factum of separation.
2) The intention to bring cohabitation permanently to an end animus deserendi.
3) The element of permanent which is prime condition requires that both these essential ingredients should continue 17/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 during the entire statutory period.' and has held that it is for the appellant to prove the fact of separation and also there was intention to put an end to the cohabitation.
10. It is seen from the pleadings and evidence that the respondent has taken many steps to set up a family at Mysore. When the appellant had demanded Rs.50,000/- on 24.01.1994, the respondent had received it from her parents and gave it to the appellant. In turn, the appellant took Rs.20,000/- for himself and the remaining amount of Rs.30,000/- was given to his mother. The allegation that the respondent was ill-treated and tortured was not denied by the appellant. It could be seen that there were demands of money by the appellant and the respondent had always given the same. Further, instead of taking up a job at Mysore, he came to Tiruchengode to start a rubber business and as the respondent's side were not able to invest Rs.35 Lakhs, the same was stalled and the appellant himself had visited Chennai in search of Job. When the appellant and the respondent were at Chennai, the appellant has taken her to one Advocate's house, but the respondent/wife did not even know where she was staying and only a visiting card given by appellant showed that it belongs to a person, who is an adovocate and he has also promised to 18/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 take her to a separate house and for that, also the appellant had demanded Rs.50,000/-.
11. With regard to the issue, viz., that the appellant's brother had put up a T.V. Repair shop only on the money, which was given by the respondent, it is only a presumption that the appellant's family spent all money for starting T.V. Repair shop. This Court does not want to go into detail because of the fact that there is no direct evidence produced by the parties to prove or disprove the same.
12. In respect of the other plea, viz., purchase of two wheeler is concerned, whether it was purchased by the money given by the respondent or her parents or it was purchased by the appellant/husband need not be gone into, as it is incidental in the setting up of a family life between the parties. Further, upon perusal of records it is seen that when the appellant visited the respondent's house after his stay at Chennai, his father-in-law had arranged a separate house at Kombai Kadu, Tiruchengode and his father-in-law only paid the advance of Rs.10,000/- to the said house and that there is no evidence to show that the respondent had an intention to ill-treat the appellant /husband and not willing to live with him.
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13. As far as Mediation is concerned, it is a normal procedure, when a dispute persists between a newly married couple or married husband and wife, the relatives will definitely mediate between the parties in order to unite the couple to lead a happy life and in the present case, it is evident from the statement of the respondent's parents, who stated that 'if their daughter, viz., respondent is willing to go with her husband/appellant, they do not have any objection for their daughter to stay with the appellant / husband' and the respondent's parents were not against the reunion of the appellant and respondent.
14. With regard to the money matters, always the appellant has been asking money and other things and there cannot be any evidence regarding the personal talks between the husband and wife whether he has demanded money or not. It could be seen from the documents available that the respondent's parents are taking care of the respondent and her child from the date of returning from Chennai for Deepavali in the year 1999 to till date. Further, the appellant had neither taken care of the respondent nor has done anything to the respondent/wife. However, the simple statement of the appellant that he took efforts to join the respondent and also visited the school to see his daughter, are not enough. The 20/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 appellant ought to have filed an application before the competent court for visitation rights, if he was really interested on the welfare of the child. In the absence of any such efforts, this Court is not inclined to accept the claim by the appellant.
15. While considering the respondent's pleadings, this Court had perused the letter written by her to the appellant, viz., Ex.P.4, dated 20.10.2001 and the same is extracted hereunder:
md;g[s;s khkht[f;F c';fs; kidtp ghujp vGjpaJ/ j';fspd; fojk; fpilj;jJ tpguk; bjhpe;njd;/ 16/10/2001 md;W ehd; tUtjw;F rk;kjk; vd;W vGjpf; bfhLj;Jk; vd;id jdpikapy; miHj;Jg; ngrhky; nfhh;l; thry; Kd;ng midtphpd; Kd;g[k; ngR ngR vd;why; ehd; vg;go ngr Koa[k;/ vdnt ehd; ,g;bghGnj v';fs; tPl;ow;F th';f ehk; jdpahf ngRnthk; vd;W brhy;ypa[k; eP';fs; vd; thh;j;ijia bfh";rk; Tl nfl;ftpy;iy ,g;bghGJ ehd; j';fSld; thH tpUg;gkhf cs;nsd;/ vdnt eP';fs; vd; tPl;ow;F te;J vd;dplKk; nrhgpahtplKk; re;enjhcwkhf ngrp nrhgpahtplk; rpwpJ neuk; ,Ue;J bry;yt[k;/ ,e;j yl;lh; fpilj;jt[ld; clnd th';f my;yJ 83727 vz;Qqf;F nghd; bra;J bjhpag;gLj;jt[k;/ c';fs; fojj;ijnah my;yJ c';fs; ehfh;nfhtpy; nghd; vz;iznah. ml;uirnah bjhpag;gLj;jt[k;////////////////////,g;gof;F/////////////ghujp/ A perusal of the same would show that if really, the respondent/wife do not have any intention to live with the appellant, she would not have written such a letter. She written that inspite of she giving her consent to live with 21/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 the appellant, he did not talk to her separately. Further, the appellant had requested to him to talk to her alone and in front of court premises, he had not listened to the same immediately, she had called the appellant to visit her house so that he can spend some time with her and child. She has also stated that she is willing to live with the appellant, and had given her telephone number. The respondent has also asked him to provide the appellant's address at Nagercoil. When the respondent/wife has expressed her willingness that she is ready to live with the appellant by calling the appellant to her house to spend some time with her and the child, it is seen that the appellant has only deserted the respondent and the same has rightly been considered by the lower appellate court.
16. Insofar as the letter dated 22.12.1999 written by the appellant asking the respondent to reunite and stating that the same was refused by the respondent is concerned, it is seen that after the said letter, the appellant has no material to show that he had taken any steps to find out what is the status of the respondent/wife and the child.
17. With regard to stay at Chennai is concerned, the appellant had 22/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 given the visiting card of one Sundaram, Advocate, who is alleged to be cousin and the evidence of the appellant that he had resided separately in a portion, as a tenant, in the said house, whereas in another portion, the advocate was residing. He has sent a letter stating c/o Sundaram to respondent which is enough to prove that he was staying in the advocate's house. Also the appellant stated that he had initiated steps for taking a separate residence and only for that purpose, he has demanded the money from the respondent. From the admission of the appellant, it could be seen that he made his wife/respondent to stay in a house at Chennai, where the advocate is also staying. It is proved by his own admission that after 01.11.1999 till January, 2000, ie., for a period of three months, the appellant was staying at the Advocate's house at Chennai. The appellant had also filed his divorce petition on 12.01.2000, without setting up a separate residence, shows that the appellant did not have any intention to reside with his wife and had pre-determined to seek for divorce.
18. Though the appellant / husband has not taken care of the respondent / wife and child and tried to desert them from 01.11.1999, the parents of the respondent had taken care of their daughter and grand daughter. It is brought to the knowledge of this Court that the girl has 23/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 completed M.B.B.S. Degree and now she is a qualified Doctor working in a Hospital at Erode, which shows that the respondent/wife has taken care of the child and her well being without any support from the appellant. Now the appellant states that neither respondent would live happily with the appellant nor she would allow the appellant to live happily by giving divorce. All these statements would show that the appellant/ husband is not ready to take the responsibility, as the husband of the respondent and father of the child.
19.The appellant, who is present before this Court has contended that the respondent has irretrievable broken the marital life and she is interested only in getting maintenance from him and not living with him.
Further, he has no regular income and hence the payment of Rs.3,000/- as maintenance to his wife may not be possible. Since there is no reunion and that he does not have any ancestral property or any money deposited in the bank for them to claim, he seeks divorce and would like to live in peace.
20. It is pertinent to note that from the date of their separation, the 24/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 appellant is living like a free bird and has not taken any steps for paying maintenance for the wife and child and only based on the directions of this Court, the appellant has paid some amount in year 2019. Further, the wife who had struggled without the husband's support had made her daughter to be a qualified Doctor, which has to be appreciated and wife's difficulties are known only to her and not the appellant/husband, who is living without any responsibilities. Hence the appellant's prayer that he still wants to get divorce and continue to lead his rest of the life as a free man by avoiding to perform his further duties and responsibilities as a husband / father is not accepted by this Court. The claim that the wife was only keen on maintenance amount is also held against him, as he has not paid any amount till the year 2019.
21. At this stage, the learned counsel for the respondent/wife has submitted that their daughter, has to get married and the status of the respondent need not be a divorcee, till date, she is living separately and the same can be continued.
22. In the absence of any material produced by the appellant to 25/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 show that the marriage has been irretrievably broken and cruelty was caused by the respondent/wife to grant of divorce, this Court is not inclined to allow the present CMSA filed by the husband. The averments by the respondent that the letter written by her would be sufficient to prove that the wife had no intention to desert him and the respondent failed to prove that her acts had caused any cruelty
23. Accordingly, the present C.M.S.A.No.27 of 2010 filed by the appellant stands dismissed and the order passed by the learned Principal District Judge, Namakkal in C.M.A.No.68 of 2004 dated 30.06.2010 stands confirmed. Consequently, connected miscellaneous petitions are closed. No costs.
20.11.2019 Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Judgment ssd To
1. The learned Principal District Judge, Namakkal.
2. The learned Sub Judge, Namakkal.
26/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010
3. The Section Officer, VR Section, Madras High Court, Chennai 27/28 http://www.judis.nic.in C.M.S.A.No.27 of 2010 V.BHAVANI SUBBAROYAN, J., ssd C.M.S.A.No.27 of 2010 and M.P.Nos.1 of 2010 and 2 of 2015 20.11.2019 28/28 http://www.judis.nic.in