Madras High Court
G.K. Murahari vs Malliga on 30 November, 2018
Bench: S.S.Sundar, C. Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE C. SARAVANAN
CMA(MD).Nos.1271 of 1272 of 2014
M.P(MD).No. 1 of 2014 in CMA(MD).No.1271 of 2014
G.K. Murahari : Appellant in both appeals
-Vs-
Malliga : Respondent in both appeals
PRAYER: These Civil Miscellaneous Appeals are filed under Section
19 of the Family Court Act, 1984 against the Judgment and Decree
passed in HMOP.Nos.108 and 111 of 2014, dated 19.09.2014, on the
file of the Family Court, Thirunelveli.
For Appellant : Mr.H. Arumugam in both appeals
For Respondents : Mr.M.P. Senthil in both appeals
***
http://www.judis.nic.in
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JUDGEMENT
(Judgment of this Court was made by S.S. SUNDAR, J.,) These Civil Miscellaneous Appeals are filed against the Judgment and Decree passed in HMOP.Nos.108 and 111 of 2014, dated 19.09.2014, on the file of the Family Court, Thirunelveli.
2. Facts necessary for disposal of the appeals are as follows:
In both the appeals, the appellant is the husband and the respondent is the wife. CMA(MD).No.1271 of 2014 has been preferred against the Judgment and Decree of the Family Court, Thirunelveli in HMOP.No.108 of 2014, filed by the respondent, against the appellant for divorce on the ground of cruelty. Similarly, CMA(MD).No. 1272 of 2014, has also been filed by the appellant as against the Judgment of the Family Court, Thirunelveli in HMOP.No. 111 of 2014 filed by him seeking restitution of conjugal rights. Since the issues that arise for consideration in both appeals are one and the same and the petition filed by the appellant in HMOP.No. 111 of 2014 was dismissed as consequential to the decision of the Family Court in HMOP.NO. 108 of 2014 granting divorce to the respondent, this Court is inclined to http://www.judis.nic.in 3 dispose of both the appeals by this common Judgment. (herein after the parties are referred as appellant and respondent).
3. The facts leading to these appeals are as follows:
The appellant married the respondent on 19.06.1997. Out of the wedlock there is no issue. It is admitted that the appellant is working as a Court Staff and got retirement as on date and the respondent is an employee of Thirunelveli Municipal Corporation as a Junior Assistant. It is admitted by both parties that the respondent is a handicap (affected by poliomyelitis during childhood). It is admitted in this case that the respondent is not living in matrimonial home from 29.10.2004. Though the respondent states that she was driven out from the matrimonial home, it is the case of appellant that the respondent left the matrimonial home on her own, without any sufficient cause. It is not in dispute that the appellant originally issued a notice under Ex.P2, dated 01.12.2005 seeking divorce. Subsequently, another notice was also issued by the appellant on 19.12.2005. Pursuant to the said notice, which was also marked as Ex.P2, the respondent issued a reply notice on 23.12.2005. Reply notice issued by the respondent is marked as Ex.P3. From the notice issued by the appellant it is seen that the appellant has referred to http://www.judis.nic.in 4 several incidents of cruelty allegedly committed by the respondent.
It was therefore, the appellant at the earlier point of time wanted divorce and the respondent in her reply resisted and disputed the allegations.
4. It is also to be noted that respondent in her reply, though alleged few incidents of cruelty against the appellant and contended that he was mentally ill she agreed to live with the appellant on condition that the husband agrees to take medical treatment for his mental instability. Nearly, after a lapse of five years the respondent without even issuing a notice filed a petition in HMOP.No. 108 of 2014 for divorce on the ground of cruelty. The appellant thereafter, filed HMOP.No.111 of 2014, before the Family Court, Thirunelveli for restitution of Conjugal Rights.
5. From the nature of pleadings it is seen that the respondent, wife has altered her position contradicting the stand taken earlier in the year 2005, by filing a petition for divorce as stated above. In the petition filed by the respondent, of course, the respondent has referred to some incidents, that happened when the appellant and respondent was living together before 2005. It is stated that the respondent was driven out from the matrimonial home http://www.judis.nic.in 5 and they are living separately for more than four years. However, the allegations found in the petition are to the effect that the respondent was made to appear before the legal services authority on few occasions and that the appellant issued a notice containing false allegations. Except this, there is no other allegation referring to any incident between 2005 and 2010, with regard to the conduct of the appellant causing mental cruelty. The learned Judge, Family court, Thirunelveli despite the fact that the allegations of cruelty have been specifically denied and the respondent did not have any cause to seek divorce against the appellant till she left the matrimonial home in 2005 granted decree for divorce only on the ground of irretrievable break down of the marriage between the appellant and respondent.
6. It is seen that the whole Judgment is cryptic. Though the pleadings of the respective parties are extracted, the ultimate conclusion is not based on the allegations found in the petition regarding the conduct of the appellant. After taking into account the contents of notice and reply notice the learned Judge has also observed that the petition for divorce is not in tune with the stand earlier taken by the respondent. However, the Court below granted decree for divorce only for the reason that the husband also has no inclination to live with the wife, though he contested the petition for http://www.judis.nic.in 6 divorce and filed a petition for restitution of conjugal rights.
7. The learned counsel appearing for the appellant relied upon the Judgment of the Hon'ble Supreme Court reported in 2009(3) CTC 288 (Vishu Dutt Sharma Vs. Manju sharma), wherein the Hon'ble Supreme Court considered the earlier decision of the Hon'ble Supreme Court and found that the Courts are not expected to dissolve the marriage on the ground of irretrievable breakdown for granting divorce as that is not a ground under the Hindu Marriage Act. It is also observed by the Hon'ble Supreme Court in that case that the previous Judgment of Hon'ble Supreme Court to grant divorce on the ground of irretrievable breakdown cannot be taken as a precedent as it is not supported by any statutory provision, particularly, Hindu Marriage Act, 1956. The relevant Paragraph in the Judgment of Hon'ble Supreme Court is extracted as under:
“6. Learned counsel for the appellant has stated this court in some cases had dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage http://www.judis.nic.in 7 is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant. Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce.”
8. The learned counsel appearing for the respondent relied upon the Judgment of the Hon'ble Supreme Court 2006(1) LW 162 (Durga Prasanna Tripathy Vs. Arundhathi Tripathy). In the said Judgment of the Hon'ble Supreme Court after taking note of the fact that the appellant and respondent were living separately for several years and that the parties had not enjoyed the company of each other for 14 years has observed that living together is out of question as both parties have crossed the point of no return. Exercising power under Article 142 of the Constitution of India granted divorce on the ground of irretrievable breakdown of marriage. The position that in several Judgments, the Hon'ble Supreme Court has granted divorce on the ground of irretrievable breakdown of marriage is not in dispute. The power that is available to the Hon'ble supreme Court under Article 142 of the Constitution of India is not available to this Court to grant divorce on the ground of irretrievable breakdown of marriage.
http://www.judis.nic.in 8
9. Having regard to the above position, this Court is unable to subscribe the decision of Family Court. Regarding cruelty in this case the respondent did not want divorce in the year 2005. It is stated that she was driven out from the matrimonial home. Even then she did not want divorce in the year 2005 on the ground of cruelty as seen from her reply notice. There is no evidence after 2005, till the date of filing the petition. There is not even an attempt by Family Court to decide whether there is factual background to grant a decree of divorce on the ground of cruelty. In such circumstances, we do not find any valid reason to sustain the order of the Family Court to grant divorce on the ground of cruelty. The petition filed by the appellant in HMOP.No. 111 of 2014 was dismissed only because the petition filed by the respondent for divorce was allowed.
10. Hence, both the appeals filed by the appellant are allowed and the order passed by the learned Judge, Family Court, Thirunelveli in HMOP.Nos.108 and 111 of 2014, dated 19.09.2014 is set aside. However, the Family Court has not given any specific finding with regard to serious allegations, which are found in the petition. This court is of the view that the respondent should also be http://www.judis.nic.in 9 given an opportunity to prove cruelty. Hence, this Court is inclined to remit the matter to the Family Court, Thirunelveli to decide both the petitions in HMOP.Nos.108 and 111 of 2014. Accordingly, both petitions in HMOP.Nos.108 and 111 of 2014, on the file of the Family Court, Thirunelveli is remitted back to the Family Court, Thirunelveli and the learned Judge, Family Court, Thirunelveli is directed to dispose of both the HMOPs after considering the evidence on merits and in accordance with law after affording sufficient opportunity to both parties. Further, the learned Judge, Family Court is directed to dispose of both the HMOPs within a period of three months from the date of receipt of a copy of this Judgment. No costs. Consequently, connected Miscellaneous Petition is closed.
11. Both the parties shall appear before the Family Court on 23.01.2019.
(S.S.S.R., J.,) (C.S.N., J.,)
30.11.2018
Index : Yes/No
Internet : Yes/No
trp
To
http://www.judis.nic.in
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The Judge, Family Court, Thirunelveli.
S.S.SUNDAR, J.,
and
C. SARAVANAN, J.,
trp
CMA(MD).Nos.1271 of 1272 of 2014
M.P(MD).No. 1 of 2014 in CMA(MD).No.1271 of 2014 30.11.2018 http://www.judis.nic.in