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G.C. Porus v/s Tamilarasi

    CMSA(MD)No. 4 of 2007

    Decided On, 18 July 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE M.V. MURALIDARAN

    For the Appellant: M/s. N. Krishnaveni, Senior Counsel for P. Thiagarajan, Advocate. For the Respondent: M. Pandiarajan, Advocate.



Judgment Text

(Prayer: This Civil Miscellaneous Second Appeal has been filed under Section 28 of Hindu Marriage Act, read with Section 100 of C.P.C., against the decree and order dated 14.02.2006 made in C.M.A.No.47 of 2005 on the file of the Additional District-cum-Sessions Judge/Fast Track Court No.II, Thoothukudi, confirming the decree and order dated 09.01.2004 made in H.M.O.P.No.60 of 2002 on the file of the Subordinate Judge, Thoothukudi.)

1. This Civil Miscellaneous Second Appeal is filed against the judgment and decree of the learned Additional District-cum-Sessions Judge/Fast Track Court No.II, Thoothukudi in C.M.A.No.47 of 2005 dated 14.02.2006 confirming the judgment decree of the learned Subordinate Judge, Thoothukudi in H.M.O.P.No.60 of 2002, dated 09.01.2004. The husband who had filed the H.M.O.P. for divorce is the appellant before this Court.

2. Petition was filed by the appellant for divorce under Section 13(i)(b) of Hindu Marriage Act 1955. The marriage between the appellant and the respondent took place on 09.04.2000 at Thoothukudi according to the customs and rites prevailing in their community. At the time of marriage, the respondent/wife was working as Assistant in Tirunelveli Collector Office and even in the first night itself, the respondent insisted the petitioner to settle at Palayamkottai at the mercy of her parents. The petitioner refused to accept her demand as such the respondent picked up quarrel and the marriage was not at all consummated. Within a week after the marriage, the respondent joined duty at Tirunelveli and stayed with her parents. During weekends, she used to visit the petitioner but continued her demand to stay with her parents. After 5 + months from marriage, the petitioner got a job at Coimbatore in 'Bimetal Bearings' as Deputy Sales Manager and as such he decided to shift his residence to Coimbatore, but the respondent refused to accompany him in spite of the appellant arranged a rental house at Coimbatore and it was remained unoccupied for more than 5 mo

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nths as the respondent refused to reside there. The respondent has no intention to live with the petitioner and the marriage was irretrievably broken and emotionally dead and hence the petitioner filed the petition for divorce on the ground that the marriage is not consummated and on the ground of willful desertion, causing mental cruelty.

3. In the counter filed by the respondent by denying the various allegations in the petition contended that she had given a Police complaint on 21.05.2002 at All Women Police Station, Thoothukudi for dowry harassment. Further she contended that on 07.02.2001 when the petitioner’s brother’s marriage was took place, she had attended the marriage and as she refused to give her jewelleries to the petitioner, when he has demanded the same for discharging his debts he got anger and filed the petition. Further pursuant to the police complaint, the petitioner brought the respondent to Coimbatore and lived for 6 days and thereafter sent back to Palayamkottai. Only to escape from the police enquiry, the petition came to be filed and she was ready to live with the petitioner. Further it has been reiterated in the counter that till 24.06.2002 the husband and wife relationship was existing between the petitioner and the respondent.

4. On consideration of the oral and documentary evidences, the trial Court held that though there were misunderstanding between the husband and wife, and the wife sought apologies to the husband under EX.A1 letter, regretting her mistake and as such those misunderstandings are only the usual wear and tear of marital relationship and which are all not sufficient enough to grant a decree for divorce. Challenging the said judgment and decree of trial Court, the petitioner preferred an appeal and the appellate Court also confirmed the views of the trial Court and dismissed the appeal.

5. The following substantial questions of law have been framed for consideration at the time of admission of the above appeal:

A. When the marriage has been irretrievably broken, is the learned District Judge correct in dismissing the petition filed by the appellant/husband for divorce?

B. When the constant nagging amounting to cruelty is a ground for divorce, is the learned District Judge is correct in dismissing the petition for divorce?

C. When the respondent, herself was not willing to join the husband and deserted the matrimonial home, is that not a ground to grant divorce to the husband?

6. I heard M/s.N.Krishnaveni, learned Senior Counsel for Mr.P.Thiagarajan, learned counsel for the appellant and Mr.M.Pandiarajan, learned counsel for the respondent and perused the entire material available on records.

7. The learned Senior Counsel appearing for the appellant contents that though the marriage was took place on 09.04.2000, the petitioner and respondent were living together only for a few days and even during those days there was no marital relationship due to quarrel instigated by the respondent and the respondent was living separately with her parents and working as a Government servant at Tirunelveli, ignoring the petitioner and his family without any valid reasons and till today there is no marital relationship between the parties and the respective parties are living separately for all these years and looking after their respective lives independently. Further she pointed out that the lower appellate Court erroneously came to a conclusion that the decree for divorce cannot be granted on the ground of desertion as the respondent/wife had attended the petitioner’s brother’s betrothal function during February 2001 and during 19.06.2002 to 29.06.2002 the respondent was living with the petitioner at Coimbatore pursuant to the police complaint given by the respondent on 21.05.2002 at All Women Police Station, Thoothukudi and the petition for divorce came to be filed on 18.07.2002, ignoring the fact that right from the beginning there was no cordial relationship between the petitioner and the respondent as a result, marriage was not consummated and no child was born to the parties. Further she contended that by virtue of EX.A1 letter written by the wife to the husband regretting her mistake it can easily be presumed that the wife was not in a cordial relationship with her husband and frequently pickup quarrel with him and wantonly living separately without any valid reasons and whereby causing mental cruelty to the husband. The wife who is a Government servant now working as Tahsildar is never bothered about her broken marital relationship with the husband but refused for any kind of settlement in spite of several attempts at the instance of this Honourable High Court, Further the respondent/wife is very much eager to see that the husband should suffer in her hands by keeping the marital tie between them for a name sake and live separately which itself amounting to cruelty and causing agony to the husband. Further she used to give false police complaints against the husband whereby causing agony in the mind of the appellant and could have also resulted in humiliating him among his friends and relatives, thereby causing irreparable injury to his reputation. Further she has contended that there will be no purpose in retaining the marriage tie between the parties in spite of the fact that their marital relationship was irretrievably broken beyond repair an she relied upon the following judgments:

(i) 2006 (4) SCC 558 [Naveen Kohli Vs. Neelu Kohli]

wherein the Hon'ble Supreme Court held that both the parties living separately for more than 10 years, wife was not prepared to have a decree for divorce on mutual consent even at the stage of appeal before Hon'ble Supreme Court, in such circumstances, grant of decree for divorce would be in the interest of both the parties and refusal to grant the decree would be disastrous to them - When parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. It will be against the interest of both the parties as well as against the interest of the society to refuse to grant decree for divorce in such cases. Undoubtedly it is the obligation of the Court and all concerns that the marriage status should as far as possible as long as possible and whenever possible be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied for ever to a marriage which in fact has ceased to exists. Preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties not to grant a decree of divorce would disastrous for the parties, otherwise there may be ray of hope for the parties that after a passage of time after obtaining a decree of divorce the parties may psychologically and emotionally settle down and start a new chapter in life.

(ii) 2007 (2) SCC 263 [Rishekeesh Sharma Vs. Saroj Sharma]

wherein the Hon'ble Supreme Court held that when the marriage is irretrievably broken down with no possibilities of the parties living together again, It will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, the best Court is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for the remaining part of their life - Her desire to live with her husband at the stage and at the distance of time is not genuine.

(iii) 2007 (4) SCC page 511 [Samar Ghosh Vs. Jaya Ghosh] It has been held that where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie, by refusing to sever that tie the law in such cases does not serve the sanctity of marriage on the contrary it shows scant regard for the feelings and emotions of the parties, in such situation it may lead to mental cruelty. - The High Court failed to take into consideration the most important aspect of the case that the parties had admittedly be living separately for more than 16 + years. The entire substratum of marriage had already disappeared. - Finding of the High Court that the appellant had started living with the respondent amounted to condonation of the act of cruelty is unsustainable in law.

(iv) 2012 (2) MLJ page 833 [U.Sree Vs. U.Srinivas]

The Hon'ble Division Bench of this Honourable Court held that desertion by wife proved by course of conduct. Separately living for the past 15 years amounting to irretrievable break down of marriage.

(v) 2013 (5) SCC page 226 [K.Srinivas Rao Vs. D.A.Deepa]

wherein the Hon'ble Supreme Court held that Husband and wife have been living separately for more than 10 years which has created an unbridgeable distance the two. Even refusing to sever tie can constitute mental cruelty and the willingness of the wife to go back to her husband would not yield any fruitful result since the marriage had irretrievably broken down. - Where marriage is beyond repair on account of bitterness created by acts of either of the spouses or of both, Courts have always taken irretrievable break down of marriage as a very weighty circumstances among others necessitating severance of marital tie. Marriage is dead for all purposes cannot be revived by Court’s verdict if parties are not willing since marriage involves human sentiments and emotion and if they have dried up, there is hardly any chance of their bringing back to life on account of artificial reunion created by Court decree.

(vi) 2017 (3) MWN (Civil) 337(DB) [R.Thangamani @ Mainavathy Vs. S.Sathishkumar] Parties living separately for 10 years, Marriage between parties irretrievably broken down.

On the strength of the above judgments, the learned Senior Counsel appearing for the appellant says that for the past 18 years, the parties are living separately and their marriage between them irretrievably broken down and as such prayed for the decree for divorce.

8. The learned Counsel for the respondent contents that since the petitioner failed to prove his case the Courts below correctly came to a conclusion that he is not entitled to the relief prayed for. In the EX.A1 the letter written by the wife it has been stated that 'my mode of talk could hurt you many times, please forgive me' itself is not sufficient to prove the cruelty as found by the learned District Judge is correct and as such the judgment and decree of the lower Courts has to be confirmed. Further he has stated that the misunderstanding between the husband and wife which arose due to constant nagging is a normal course in every matrimonial home and it cannot be construed as cruelty to grant divorce is a valid reasoning of the learned District Judge and even according to the decisions of the Honourable Supreme Court of India that it is a mere wear and tear in a normal matrimonial life and it will not amount to cruelty. Further the counsel appearing for the respondent contended that the reasoning assigned by the learned District Judge is valid because the appellant was working in a private firm on the other hand the respondent was working in Government job and the appellant had not taken any steps for getting transfer to the respondent to Coimbatore and only under such circumstances, the respondent was residing at her house at Tirunelveli. Further it has been stated that the appellant was not earning so much and he cannot even maintain the family and it was the reason, why the learned District Judge held that the Government employees is a secured employment. Further the respondent’s counsel argued that the appellant had suppressed the criminal proceedings in C.C.No.123 of 2003 before the learned Judicial Magistrate I, Thoothukudi, wherein the appellant had given a statement before the learned Judicial Magistrate Court No.1, Thoothukudi to the effect that both are living as husband and wife and hence the appellant cannot even maintain the above civil miscellaneous second appeal. Further he has stated that in the Criminal Court the appellant through his counsel by his notice dated 07.07.2007 stated that he is withdrawing the C.M.S.A.(MD)No.4 of 2007 and based on the said understanding the respondent made a statement before the Criminal Court that there is no dowry harassment and no dispute with my husband and ultimately the learned Magistrate treated the respondent witnesses as hostile and acquitted the appellant.

9. Though the learned counsel for the respondent contended that there are many happenings pending disposal of the CMSA before this Honourable High Court, nothing on record by way of evidence to peruse and proceed on the basis of the said contentions. On the other hand, the learned Senior Counsel appearing for the appellant would content that the letter alleged to have been written on 07.07.2007 to the appellant by his counsel with respect to the withdrawal of C.M.S.A. (MD)No.4 of 2007 is nothing but the letter written by the counsel to his client on his request for withdrawal appeal based upon the settlement talk between the parties. But since the respondent/wife refused to give the consent for mutual divorce as agreed during the settlement talk so as to withdraw the C.M.S.A.(MD)No.4 of 2007, the appellant constrained to proceed with the said appeal and the letter dated 07.07.2007 is nothing to do with prosecuting the present Civil Miscellaneous Second Appeal.

10. Further it has been contended by the counsel for the respondent that the respondent had no intention to get separated from the appellant and wanted to live with him. In support of the same, she has nominated the appellant’s name in the medical insurance scheme and included in the Aadhaar as her husband. Further in the respondent’s service register the appellant’s name was included as nominee to receive the benefits since the respondent is a Government servant and therefore the appellant is not entitled to relief claimed in the CMSA and the respondent’s counsel is relied on the judgments reported in 2007 (4) SCC page 511; 2002 (2) SCC page 73 and 1994 (1) SCC page 337.

11. I have considered the rival submissions of both the sides. Though the marriage was solemnized as early as 09.04.2000 between the parties there were misunderstanding between the parties and the respondent/wife gave police complaint for dowry harassment and living separately. Though she had claimed that till December 2016 she is living with the appellant, she has not produced any document to establish the same. Moreover it is strange to know that when the husband seeking divorce and prosecuting in the Court of law from the year 2002 and the same was contested by the respondent/wife all along and now claiming that she is lived with her husband till December 2016 is nothing but presumed to be lie and the intention of the wife is to keep the marriage tie in tact though she is living separately and looking after her life independently from her Government service. Moreover no child was born to the parties out of their wedlock and as such there would not be any difficulty to grant the decree for divorce on the basis that there would not be any purpose in compelling both the parties to live together in spite of the fact that their marriage irretrievably broken down. The judgments relied on by the respondent/wife are also supporting the case of the appellant that when the marriage is irretrievably broken down, it is just and necessary to grant a decree for divorce when the matrimonial bond had been ruptured beyond repairs. Moreover the judgments relied on by the counsel for the appellant would reveal the position of the law that the Hon'ble Supreme Court as well as the Honourable Division Bench of this Honourable High Court repeatedly held that when the marriage between the parties irretrievably broken down and living separately for years together there will not be any purpose in keeping the marital tie intact. Moreover the Honourable Supreme Court repeatedly held that the High Court ought to have visualized that the preservation of irretrievably broken down marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.

12. In the present case on the basis of the entire evidences and rival submissions it may be fairly concluded that the matrimonial bond between the parties is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever the tie the law in such cases does not sever the sanctity of marriage, on the contrary it show scant regard for the feeling and emotion of the parties as held by the Honourable Supreme Court reported in 2007 (4) SCC 511 and other judgments produced by the counsel for appellant and I am of the considered view that there is no purpose in compelling both the parties to live together and the best Court is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 2002 and have lost valuable part of life can live peacefully for the remaining part of their life. I am of the opinion that the respondent’s desire to live with her husband as expressed by her Counsel during the course of the argument at this stage and at this distance of time is not genuine. During the course of the argument, it has been revealed that the respondent/wife is now working as Tahsildar in the Revenue Department in Government of Tamil Nadu and very much financially affluent and she is in no need of financial assistance for her maintenance from the appellant/husband and as such there is no necessity for any payment of lump sum amount by way of permanent alimony to the wife.

13. In the result, the Appeal filed by the husband/appellant stands allowed. There will be a decree of dissolution of the marriage solemnised between the parties on 09.4.2000 at Thoothukudi in favour of the husband/appellant.
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