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Joseph Antony Gerard v/s J.L. Malarvizhi


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    C.M.A. (MD) Nos. 760, 761, 9748 of 2019

    Decided On, 11 November 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM & THE HONOURABLE MRS. JUSTICE R. THARANI

    For the Appellant: M.P. Senthil, Advocate. For the Respondent: None.



Judgment Text


T.S. Sivagnanam, J.

1. The appellant husband is aggrieved by the common order, dated 26.6.2019, passed in I.D.O.P. Nos. 90 and 237 of 2018, by the learned Judge, Family Court, Kanniyakumari at Nagercoil.

2. The respondent wife filed a petition for divorce in I.D.O.P. No. 157 of 2015, on the file of the District Court, Nagercoil. After the constitution of the Family Court for Kanniyakumari District, on 23.3.2018, the case was transferred to the file of the Family Court and re-numbered as I.D.O.P. No. 90 of 20l8.

3. The appellant husband filed I.D.O.P. No. 237 of 2018 for restitution of conjugal rights on 18.5.2018 i.e., after the divorce petition was transferred to the Family Court and re-numbered in the year 2018.

4. The Family Court, Kanniyakumari at Nagercoil, by common order dated 26.6.2019, allowed the petition for divorce filed by the respondent wife and dismissed by the petition for conjugal rights filed by the appellant husband. Aggrieved by the same, the appellant husband has preferred the present civil miscellaneous appeals.

5. The learned Counsel appearing for the appellant contended that the appellant and the respondent were married during 1999 and out of the wedlock, there are two children, who are sufficiently grown up; the appellant, as of now, is aged about 50 years and the respondent is aged about 43 years and without taking note of this factual position, the learned Family Court has allowed the petition filed by the respondent for divorce and hence, the learned Family Court erred in granting a decree of divorce.

6. It is further submitted that the learned Family Court mechanically accepted the evidence of the respondent-wife with regard to the allegation that the appellant husband was habitual in consuming alcohol, without any independent witness. Further, the learned Family Court erred in rejecting the petition for restitution of conjugal rights merely on the ground that the appellant husband did not take any steps to file any such application or even issue notice at an earlier point of time. Further, the observation of the learned Family Court that there is no possibility of reconciliation of marital tie, without adverting to the misunderstanding between the couple and the fact that they lived together till the year 2015. Further, the learned Family Court having held that there is no corroborative evidence to substantiate the allegation that the appellant doubted the character of the respondent alleging illicit relationship with fellow worker, ought to have dismissed the petition for divorce and allowed the petition for restitution of conjugal rights.

7. It is further submitted that the learned Family Court granted decree of divorce largely relying upon the evidence of P.W.2 (daughter) in bits and pieces, without considering the evidence as a whole. By referring to the evidence of P.W.2, the learned Counsel for the appellant submitted that the daughter, who was 19 years of age, had stated that if her mother/respondent is willing to live with the appellant, she has absolutely no objection, which goes to show that there is no hatred to her father and it was her desire that her parents should unite. Further, the learned Family Court ought to have taken into consideration the long cohabitation of fifteen years; the two children born to the couple, who are grown up and the elder child being nineteen years of age, apart from the age of the appellant and the respondent, and could not have granted the decree of divorce.

8. Further, it is argued that the Family Court ought to have taken a pragmatic approach to the matter considering the welfare of the two children, who will be affected, if the marriage is dissolved and without considering the same, the learned Family Court erred in observing that there is a complete break down of the marriage. Further, it is argued that merely because the couple are living separately for over four years that would not mean that there will be no chance to reconcile. Further, the learned Family Court brushed aside the evidence of R.Ws. 1 to 3, which ought to have been considered for granting a decree for restitution of conjugal rights.

9. Further, the allegations, which have been made against each other are the issues, which are normal in a matrimonial life and that could not have been a reason for granting a decree of divorce. The learned Counsel for the appellant then referred to the contentions advanced by the appellant before the learned Family Court and the findings rendered by the Family Court to buttress his submission that the order passed by the learned Family Court calls for interference.

10. We have elaborately heard Mr. M.P. Senthil, learned Counsel appearing for the appellant.

11. After elaborately setting out the above contentions, the learned Counsel for the appellant submitted that this Court may refer the matter for mediation considering the age of the parties and there are two grown up children. Under normal circumstances, we would have considered such a request, after issuing notice to the respondent and obtaining her consent. However, after elaborately hearing the learned Counsel for the appellant and perusing Paragraph No. 11 of the order impugned before us, we thought fit not to refer the matter for mediation. In Paragraph No. 11 of the order, the Family Court has recorded that before commencing enquiry, when the case was pending before the District Court i.e. during 2015-2018, the matter was referred to mediation to examine the possibility of re-union. A report was submitted on 26.12.2016 stating that no amicable settlement could be arrived at between the parties. The petition for divorce stood transferred to the Family Court and re-numbered on 12.4.2018, after which, the Family Court has referred the matter for mediation twice. Such reference could have been made only with the consent of both parties. The mediation attempted on both occasions failed and reports dated 9.6.2018 and 22.10.2018 were placed before the Court. These resports clearly reveal that there is no amicable settlement between the parties. The learned Family Court did not stop with that. As per the procedure to be adopted by the Family Court, the matter was referred to the counselling and the trained Counsellor has also submitted a report stating that there is no possibility of reunion. After exhausting all the avenues, the Court commenced hearing of the matter on merits. Thus, we find that no purpose would be served in referring the matter for mediation. Accordingly, we decline to the request of the learned Counsel for the appellant.

12. First we take up for consideration is whether the appellant had made out a case before the learned Family Court for securing a decree of restitution of conjugal rights. It was pointed out that the respondent-wife had withdrawn from the matrimonial life on 5.5.2014 and it was pointed out that the appellant-husband has a right to seek for a direction to the respondent to live with him. Thus, what was required to be seen is whether there was a reasonable excuse on the part respondent-wife to with drew from the matrimonial life. This aspect of the matter was considered by the learned Family Court taking into consideration the evidence placed before it. The appellant has not even made any attempt to seek for restitution of conjugal rights or in any manner seek for the company of his two children. It is only after the divorce petition, which was filed by the respondent initially before the District Court during 2015, was transferred to the Family Court in April 2018, the appellant had filed a petition for restitution of conjugal rights on 6.6.2018. This aspect has been rightly noted by the Family Court to assess the conduct of the mindset of the appellant.

13. The learned Family Court concluded that the appellant had no intention to live with his wife and children. Considering the facts and circumstances of the case, the learned Family Court held that the attempt of the appellant to seek for restitution of conjugal rights and to live with his wife and children is an afterthought, which conclusion arrived at by the learned Family Court cannot be faulted. Apart from that, the learned Family Court noted the conduct of the appellant in not attempting to reach his children nor pay any alimony for his children, though for the first time in 2018, he pleaded that he wants to live with his wife and children. Therefore, considering the evidence on record, the learned Family Court has rightly concluded that the appellant failed to prove that the respondent had snapped the marital ties without reasonable excuse. Thus, there is no error in the findings of the Family Court rejecting the petition filed for restitution of conjugal rights.

14. Now, we move on to consider as to whether the findings rendered by the Family Court granting a decree of divorce was justified or not and whether there is any misreading or misinterpretation of the evidence on record, more particularly, that of the daughter of the couple (P.W.2), who was aged 19 years.

15. The petition for divorce was filed on the ground of cruelty. The burden of proof lies on the party, who alleges cruelty. If the party alleging cruelty discharges the initial burden cast upon him/her, then the burden shifts to the opposite party. Thus, to decide as to whether a decree of divorce has to be granted, the evidence placed before the Court is pivotal. The respondent was required to plead and prove the case of cruelty and the circumstances, which have driven her to take such a decision, and the intensity and mental agony, which made it impossible for her to continue the marital life. We find from the impugned order that right from the commencement of the marriage, there has been mistrust and problems grooving between the couples. The starting point could have been the suppresion of educational qualification of the appellant husband, who stated that he is a Graduate in Mathematics and secured Diploma in Computer Science, working as Manager in a Supermarket at Sharjah for ten years and was required to go back to Sharjah after the wedding and joined duty on 6.6.1999. The respondent-wife is a Post-Graduate in English Literature with B.Ed, qualification and was working as a PG Assistant in a Matriculation Higher Secondary School. She was compelled to resign her job and got married to the appellant. The matrimonial home was established in Vadakkankulam and the definite case of the respondent is that the appellant regularly consumed alcohol and his behaviour was indifferent to the respondent. By then, the respondent was pregnant and the appellant left for Sharjah. It is only then, she came to know that the appellant has not completed his B.Sc. Degree and worked in Sharjah after obtaining a computer certificate course from a Computer Center in Trivandrum, Kerala State. Right from the date she got married to the appellant, there appears to have been financial difficulty, which compelled her to secure a job in a Higher Secondary School at Nagercoil. It is stated that during the relevant time, the couple have been staying in a rental house and at that time, the appellant had treated the respondent with cruelty in drunken state of mind, abused her in filthy language and doubted her character. The elder daughter was born on 24.2.2000 and it is stated by the respondent that the appellant came to Baptism function in a drunken mood and caused disturbance in the function. The family members and the elders advised and the couple were made to reunite, which did not stay for long. Money, which was obtained from the respondent by the appellant for starting business, had been completely washed away and as he was an utter failure in the business ventures, once again, the respondent had to take up a job in an Institution at Vadakkankulam and out of her hard work, she was made as Vice-Principal of an International School. Several other instances have been set out by the respondent.

16. On the part of the appellant, he had denied all the allegations and would state that there was no compulsion meted out to the respondent to resign her job and it was her decision, because she wanted to stay with her parents at Nagercoil and forced the appellant to arrange a rental house in Nagercoil and that was the root cause for the differences between them. The appellant denied the allegation that on the date of Baptism function, he came in a drunken state of mind and caused disturbance. He stated that he never pledged the jewels of the respondent and it is the appellant and the respondent, who pledged the jewels and he further stated that no cruelty was caused by him and the petition for divorce has been filed without any valid reason.

17. The learned Family Court has interacted with the children, while negotiating with the parties and found that the children, who were aged 18 and 14 years respectively, were clear and categorical that they wanted to continue to live with their mother and they have also stated about the habits of the appellant, which will go to show that he was indulged in such activities in the presence of the children. The younger son has also stated that his father was always fighting in a drunken mood and he cannot be happy and in a casual manner, if the appellant is made to live in their house. The Court noted that the elder daughter was pursuing

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her first year MBBS Course and her evidence being cogent, the Court held that it cannot be brushed aside. 18. We have perused the deposition, more particularly, that of P.W.2 and find that she has been cogent in what she stated and it is wrong to state that the Court has failed to consider the evidence of P.W.2, who stated that she has no objection, if her father and mother lived together. The evidence of P.W.2 cannot be read in isolation, but has to be read as a whole and if done so, it is clear that the 19 years old daughter was categorical and she wanted to live in peace. The Court has specifically recorded that it had discussed the matter with the children, when there was negotiation going on between the parties at the instance of the Court and the younger child, who was by then aged about 14 years, was very categorical. The children aged about 18 and 14 years cannot be tutored nor there was any allegation before the Court that the children were tutored. Because of the warring spouses, the young children have been brought before the Court and uncomfortable and difficult questions had to be necessarily put to them, which itself in our opinion would have been traumatic. Thus, for all the above reasons, we find that there is no error in the order passed by the learned Family Court. 19. In the result, these civil miscellaneous appeals fail and they are dismissed. No costs. Consequently, connected miscellaneous petition is closed. CMAs dismissed.
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