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Anthonichamy v/s Rani @ Ezhilarasi

    C.M.A.(MD) No. 650 of 2007

    Decided On, 15 November 2017

    At, Before the Madurai Bench of Madras High Court


    For the Appellant: K.C. Gurusamy, Advocate. For the Respondent: B. Rajesh Saravanan, Advocate.

Judgment Text

1. This Civil Miscellaneous Appeal has been filed by the appellant, who is the husband of the respondent, against the fair and decretal order, made in I.D.O.P. No. 175 of 2000, dated 22.01.2007 on the file of the Principal District Court, Thoothukudi.

2. The brief facts of the case of the appellant are as follows:-

The appellant got married with the respondent-Rani @ Ezhilarasi, on 21.11.1990, as per the Christians Custom in St. Joseph's Roman Catholic Church and was registered under the Christian Marriage Act. After the said marriage, the appellant/husband and the respondent/wife lived together for seven years and had no issues. The respondent conceived, after seven years and gave birth to a male child. It is the further case of the appellant that the respondent/wife was living happily only for two years with him and after that, the respondent/wife start

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ed harassing the appellant for various issues even for trivial matters and used to quarrel with him always and started beating him and also insulted him. The respondent has also behaved in a very strange manner in public, in the presence of close relatives by abusing him. The respondent instigated her parents and family members to assault the appellant with deadly weapons. After the child birth, the respondent/wife did not come back to the matrimonial home and started living only with her parents. When the appellant invited the respondent to live with him, the respondent's father and brothers supported the stand of the respondent and foisted a false complaint against the appellant in the All Women Police Station at Kovilpatti. The appellant took all efforts to live with the respondent, but the respondent refused to live him and the respondent did not allow the appellant to see his child.

(ii) The further case of the appellant that the respondent was close to her sister's husband and she would always comment that the appellant is not a good match for her, which made the appellant to undergo mental agony and also inflicted mental cruelty by the respondent. The appellant would also submit that she had a clandestine relationship with her brother-in-laws and inspite of that, he requested her to come and live with him. Since the respondent did not bother to live with the appellant, even after much persuasions and Mediations, he sent a legal notice to the respondent on 10.07.2000 that he would file a petition for judicial separation and calling upon her to handover the baby, but she did not reply to the notice. Hence, the appellant had no other option except to file a divorce petition for dissolving the marriage of the appellant and the respondent on 21.11.1990.

3. The respondent/wife filed counter-affidavit denying all the averments as false and accusation that she is having a clandestine relationship with her brother-in-law is only a false statement. It is not the respondent, who used to avoid living with the appellant, but it is the appellant, who used to avoid the respondent and used to find fault with the respondent on trivial matters and picked up quarrel with her and the appellant had beaten the respondent and threw her into the street in a dreadful night with her child and that is the reason why, the respondent is residing with her parents and further contended that the appellant only with an intention to escape from the clutches of law, possibly if steps taken by the respondent for maintenance and for other reliefs, the appellant has come out with this false case and the same caused mental agony to the respondent and prayed for dismissal of the petition.

4. The learned Principal District Judge, Tuticorin, after hearing the appellant/petitioner and the respondent and analysing the evidence let in by both the parties, had dismissed the said divorce petition that the appellant has not proved his case, as per the allegations in his petition.

5. The learned counsel for the appellant would submit that adultery was proved beyond reasonable doubt and would further submit that the learned Principal District Judge, Tuticorin has not gone in detail regarding the cruelty alleged by the appellant.

6. This Court has perused all the evidences and the materials available on record and finds that the ground of the appellant that the respondent has committed adultery and had deserted the appellant for two years and treated the appellant with cruelty and it is harmful for the appellant to live with the respondent is not proved. Regarding the adultery, the appellant's submission that the respondent/wife did not come to the matrimonial home, after child birth and the appellant went to her house and requested her to come back to his house went in futile and at that time, the parents of the respondent had beaten him and they accused his parents in filthy language and had given complaint against him to the police and the same was not proved, since there was no evidence let in or any materials produced regarding such police complaint.

7. On perusing the evidence, while in the cross-examination, the appellant had deposed that he saw the respondent and one Tamilarasan together was not proved and one of his relative viz., Mookiah, also saw his wife and the said Tamilarasan, who were coming out of their house, around 11.00 a.m., was not substantiated by any evidence that he saw them inside their house in any compromising state. The evidence would show that the respondent/wife lived in a joint family with her mother, father, brothers and sisters and there is no separate room and it is only a single room house and that too, she had delivered a baby at that point of time. In the evidence, the appellant has stated that he has not shared this affair to his parents or to any one regarding the illicit relationship and further stated that the respondent had given complaint only to his community people about the dispute and they called the appellant and respondent and enquired them and advised them. From his evidence, it is an admitted fact that even at that point of time he had not informed about the illicit relationship, would also prove that it is only an allegation and not proved. If he had really suspected about his wife's character, he would have informed this either to his parents or to the parents of the respondent. The appellant relied upon the evidence of one Mookiah-P.W.2, who had deposed that he and P.W.3 had went to the parental house of the respondent, after the delivery and at about 04.00 p.m. in the evening, at that time, the respondent and the brother-in-law of the respondent had come out from their house and that P.W.2 did not step inside the house and they do not know whether any other person were inside their house or not and what these two were doing was not known to them, but they had a doubt that they would have had some illicit relationship, cannot be accepted. The mere allegation that they were together is not sufficient to make allegation of cruelty and adultery which is going to spell the character of the wife. It is only an assumption, on the basis of allegation made against the wife by some one without any sufficient proof, the allegation has to be rejected. The appellant making an allegation against his wife that she had an affair with her sister's husband ought to have included the other person as a party to the proceedings. Failure to make such person as a respondent, the petition deserves to be dismissed for non-joinder of necessary party and the learned Principal District Judge, Tuticorin, has rightly dismissed the petition filed by the appellant, which in the considered opinion of this Court, is correct and the same does not require any interference.

8. The appellant has not proved his case of adultery by the wife or the mental cruelty by the wife by any clinching evidence. The normal wear and tear of day-to-day life, simple misunderstanding has been blown up to this level and this proves the perception of a husband, who always has suspicious mind. The wives are not machines just to work and abide by the dictum of a husband, but they are having their own self-respect and they also need a caring life to lead a normal matrimonial life. The mere allegation that the husband would have caused mental cruelty to the wife and not the vice versa, the appeal has to be dismissed on the ground of failure of the husband to prove the cruelty and act of adultery.

9. In view of the above, this Court is of the considered opinion that there is no infirmity or irregularity in the order passed by the learned Principal District Judge, Tuticorin. Therefore, this Civil Miscellaneous Appeal deserves to be dismissed.

10. In the result, this Civil Miscellaneous Appeal is dismissed and the fair and decretal order, made in I.D.O.P. No. 175 of 2000, dated 22.01.2007 on the file of the Principal District Court, Thoothukudi, is hereby confirmed. No costs.

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