Madras High Court
Muthusamy vs Saroja on 21 February, 2020
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.S.A.No.61 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.02.2020
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.S.A.No.61 of 2001
Muthusamy ... Appellant
Vs.
Saroja ...Respondent
Civil Miscellaneous Appeals are filed under Section 100 of Code of
Civil Procedure r/w Section 28(1) of Hindu Marriage Act to set aside
Judgment and decree passed by the learned Principal District Judge,
Namakkal dated 08.08.2011 made in C.M.A.No.25 of 2010 reversing the
Fair and decreetal order passed by the learned Subordinate Judge,
Rasipuram made in H.M.O.P.No.95 of 2008 dated 08.12.2009.
For Appellant : Mr.P.Valliappan
For Respondent : Mr.S.Balasubramanian
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http://www.judis.nic.in
C.M.S.A.No.61 of 2011
JUDGMENT
This Civil Miscellaneous Second Appeal has been filed to set aside the Judgment and decree passed by the learned Principal District Judge, Namakkal dated 08.08.2011, in C.M.A.No.25 of 2010, reversing the Fair and decretal order passed by the learned Sub-Court, Rasipuram made in H.M.O.P.No.95 of 2008 dated 08.12.2009.
2. The case of the Appellant herein is that he filed H.M.O.P.No.95 of 2008 under Section 13(1) (1a) (1b) against the respondent wife for divorce, to dissolve the marriage held on 01.06.1987 between them at Moolapallipatti Village, on the ground that the wife is not behaving as a dutiful wife and she had the habit of leaving the matrimonial house and staying in her parents house. On 01.03.1990, the respondent/wife without even assigning any reason had left the matrimonial home. Thereafter, she did not return back to the matrimonial home. While so, after two years, the respondent's mother 2/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 died out of cancer. The appellant participated in the death ceremonies and called the respondent to come and live with him. But she refused to do so. In the year 2004, the Appellant's father died but the respondent did not even attend for the death ceremonies. Thereafter, the respondent filed a maintenance Application in MC No.21 of 2005, on the file of Rasipuram Judicial Magistrate Court, Rasipuram. In turn, the Appellant filed HMOP.No.66 of 2006 for restitution of conjugal rights. In the maintenance application, the Court directed the Appellant herein to pay Maintenance of Rs.1,000/- and the petition in HMOP No.66 of 2006 was also allowed. After the order passed by the learned Judicial Magistrate, Rasipuram, the Appellant requested the respondent to come and live with him but the respondent wife demanded the appellant to pay her a sum of Rs.3,00,000/- or otherwise, she threatened that she will give a false complaint against the Appellant. In spite of receiving the maintenance amount, she filed a false complaint before the Police Station and the Police pacified both the parties and sent them back.
3. The learned counsel for the Appellant submits that the respondent lived with the petitioner only for a few months and even 3/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 during that period, she was not a dutiful wife, she would go to her parental house. The Appellant took lot of efforts for reunion. Thereafter, the respondent wife had come to the matrimonial house and they lived for 10 months. The Appellant had marked documents Ex.P1 to P9 and examined PW1. to PW3. On the side of the respondent wife, she examined only herself. She has not chosen to examine any other witness not marked any document to support her case.
4. Based on the pleadings and evidence, the Trial Court came to conclusion that the respondent / wife has not performing her duty as a dutiful wife and deserted her matrimonial home. The Trial Court has also taken into consideration the original HMOP filed by the husband in HMOP No.66 of 2006, wherein he has prayed for restitution of conjugal rights. The said HMOP was allowed and the respondent wife was directed to rejoin with her husband. Despite the best efforts taken by the appellant, the respondent wife was not inclined to join him. Instead she was pressing the maintenance case in MC No.21 of 2005 and threatened the Appellant to pay a sum of Rs.3,00,000/-. Challenging the order of the Trial Court granting divorce, the respondent wife has filed CMA No.25 of 4/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 2007 before the Principal District Judge, Namakkal. The Lower Appellate Court re-appreciated the evidence on record and reversed the findings of the Trial Court and allowed the Appeal. It is again the said judgment of the Lower Appellate Court, the Appellant / husband has come forward with this Civil Miscellaneous Second Appeal.
5. The learned counsel for the Appellant vehemently contended that the Lower Appellate Court has erred in re-appreciating the evidence rendered before the Trial Court. The learned counsel draw the attention of this Court to the evidence of PW1 to PW3 and the documents Ex.P1 to P9 marked on the side of the Appellant. PW2 and 3 are independent witness, they have no axes to grind against the respondent/wife. The respondent has not chosen to examine any other witness other than herself and she has not chosen to mark any document in her favour. The learned counsel has strenuously argued that the appellant / husband was always willing for reunion with his wife. It was with the good intention the appellant filed HMOP No.66 of 2006 for restitution of conjugal rights. The Trial Court has also ordered the stay petition and directed the respondent wife to rejoin with her husband. However, the respondent 5/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 wife failed to return back to the matrimonial home. The learned counsel submitted that this act of the respondent wife would certainly fall within the ambit of desertion and cruelty and therefore, the Trial Court was correct in allowing the petitioner and grating divorce on the above grounds. The Lower Appellate Court has failed to appreciate the evidence and facts placed before it. The Lower Appellate Court has held that only to avoid the payment of Maintenance, the appellant has filed the present petition. The Lower Appellate Court has failed to appreciate the fact that the respondent wife asked for a lump sum of Rs.3,00,000/- failing which, she threatened that she would file a police complaint. She has also filed a police complaint when the appellant husband refused to part with the amount prayed by the respondent wife.
6. The learned counsel for the respondent wife supported the judgment of the Lower Appellate Court and reiterated the contention raised before the Lower Appellate Court and prayed this Court to confirm the judgment and dismiss this Civil Miscellaneous Second Appeal.
7. Heard both sides and perused the materials available on 6/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 record.
8. This is a very pathetic case where the husband being a Senior citizen is still fighting for litigations before this Court to get peace. The parties are living separately for almost 30 long years, this Court has to give a finding whether it would be possible for the Appellant to resume his matrimonial life with a person, who has deserted him for three decades and thereby reversed the findings given by the Lower Appellate Court.
9. The marriage between the parties was held on 01.06.1987. It is the allegation of the Appellant that the respondent was in the habit of leaving her matrimonial house and going to her parents house every often. Every time, the Appellant used to pacify his wife to return back to the matrimonial home. While so, on 01.03.1990 the respondent left her matrimonial house and despite the best efforts taken by the husband, she did not return back. It is the evidence of the Appellant that the respondent mother passed away due to Cancer and as a duty full son-in- law, he participated in the final rites. After the completion of the 7/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 rituals, he requested his wife to return back to the matrimonial house. However, she declined. According to the petitioner, during the year 2004 his father passed away, however, the respondent has not chosen to take part in the final rites. While so, on 27.09.2005, the respondent gave a police complaint before the Rasipuram, All Womens Police Station . She also filed maintenance case in M.C.No.21 of 2005 on the Judicial Magistrate Court, Rasipuram. The Court ordered the appellant to pay a sum of Rs.1,000/- per month. Meantime, the Appellant filed H.M.O.P.No.66 of 2006 prayed for Restitution of Conjugal rights. The said petition was allowed and the respondent wife was directed to resume to her matrimonial life with her husband. It is the case of the Appellant that the respondent demanded a sum of Rs.3,00,000/- and threatened that in case of failure of paying the said amount, she would file a police complaint. Since the Appellant did not pay the amount, the respondent wife filed a police complaint. Unable to bear the cruelty given by his wife, the Appellant filed H.M.O.P.No.95 of 2008 before the Sub Court, Rasipuram seeking divorce on the ground of cruelty and desertion.
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10. The Appellant examined three witnesses and marked nine documents. All the three witnesses PW2 and PW3 are independent witnesses. The respondent examined only herself and she did not marked any documents to prove her case. After full fledged trial, the Trial Court allowed the petition filed by the husband and granted divorce. Challenging the said order, the respondent wife filed an appeal before the Principal District Judge, Namakkal. The Lower Appellate Court re- appreciated the entire evidence and the entire materials available on record and reversed the findings of the Trial Court mainly on the ground only in order to avoid payment of maintenance, the Appellant has filed the petition for divorce.
11. This Court is unable to appreciate the arguments advanced on the side of the respondent / wife. Right from the inception, it could be seen that the Appellant made continuous attempts to live with his wife namely the respondent. As a dutiful son-in-law he even participated in the final rites of the respondent mother. However, the respondent did not reciprocate the same gesture by attending the final rites of the Appellant Father. This also shows the attitude of the respondent wife. 9/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 Whatever may be the disputes between the spouse, she should have extended minimum respect to an elder namely her father-in-law, when he passed away. This act definetly is a cruel act. The relatives and friends of the Appellant would have certainly questioned him about the absence of his wife. The Lower Appellate Court has failed to consider this very important aspect.
12. The genuineness of the Appellant could also be noted from the fact that it was he, who initially filed the matrimonial proceedings before the Lower Court in H.M.O.P.No.66 of 2005 for restitution of conjugal rights. If the intention of the Appellant at that point of time was not for reunion, he need not have filed a petition for restitution of conjugal rights. On the other hand, if the respondent wife really for reunion, she should have filed the petition seeking restitution of conjugal rights. The observation of the Lower Appellate Court that it was only to evade the payment of maintenance, the Appellant has filed the present HMOP is not correct. The person who is ready for reunion would certainly be bearing of the expenses relating to running a family and for such a person a sum of Rs.1,000/- is not a big one. Despite the order 10/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 passed by the Lower Court directing the respondent wife to join with her husband, she has chosen to stay away with him. Now to turn around assail the order of the Trial Court is nothing but a cruel joke played on the life of the Appellant. The attitude of the respondent wife shows that neither she is willing to live with her husband nor allow him to live peacefully.
13. The Appellant is aged about 68 years now. The parties are living separately for almost 30 years. The Appellant has lived through his young life fighting for litigations with the respondent. If the respondent wife was genuinely aspiring and willing to join her husband, she should have respected the order passed in H.M.O.P.No.66 of 2005 and joined with her husband. But, having failed to do so and having given a police complaint against her husband, now to turn around and say that she is willing to join him is not proper. As observed earlier, the parties have been living separately for 30 long years, taking into consideration the age and no useful purpose will be served by directing for a reunion and hence, this Court is not inclined to sustain the order of the Lower Appellate Court. In the result, the present Appeal is allowed and the 11/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 order of the Trial Court in H.M.O.P. 95 of 2008 on the file of Subordinate Judge, Rasipuram, is hereby restored. No costs.
21.02.2020 Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Judgment rka To
1. The learned Principal District Judge, Namakkal
2. The learned Subordinate Judge, Rasipuram
3. The Section Officer, VR Section, Madras High Court, Chennai 12/13 http://www.judis.nic.in C.M.S.A.No.61 of 2011 V.BHAVANI SUBBAROYAN, J., rka C.M.S.A.No.61 of 2001 21.02.2020 13/13 http://www.judis.nic.in