1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.07.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS SECOND APPEAL[MD] No.36 of 2011 N.Kandasamy .. Appellant/Respondent/Petitioner Vs. K.Sathiya Bama .. Respondent/Appellant/Respondent Civil Miscellaneous Second Appeal has been filed under Sections 13 (1) (i-a) and (i-b) of the Hindu Marriage Act, 1955 read with Section 100 of the Code of Civil Procedure, 1908, against the fair and decretal order dated 10.03.2011 passed in H.M.C.M.A.No.7 of 2008 by the Principal District Court, Virudhunagar District at Srivilliputtur reversing the fair and decretal order dated 05.03.2008 passed in H.M.O.P.No.56 of 2006 by the Sub Court, Srivilliputtur. For Appellant .. Mr.G.Marimuthu For Respondent .. Mr.B.Rajesh Saravanan JUDGMENT This Civil Miscellaneous Second Appeal has been directed against the order passed in H.M.C.M.A.No.7 of 2008 by the Principal District Court, Virudhunagar District at Srivilliputtur, wherein the order passed in H.M.O.P.No.56 of 2006 by the Sub Court, Srivilliputtur is reversed. 2. The appellant herein as petitioner has filed H.M.O.P.No.56 of 2006 on the file of the trial Court under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, wherein the present respondent has been shown as respondent. 3. It is stated in the petition that the petitioner has married the respondent on 10.07.2000 as per Hindu rites and caste custom. After marriage both of them have lived as husband and wife for a short period and both of them have not been blessed with any issue. On 25.05.2001, the respondent has forced the petitioner to effect family partition. The petitioner has refused to concede the demand of the respondent. The respondent is also having interest to live with her parents. The respondent has left the matrimonial abode on 22.12.2003. The petitioner has taken enormous efforts so as to bring the respondent to matrimonial abode. But the respondent has given a false complaint on 22.04.2006 making certain allegations against the petitioner. Since the respondent has deserted the petitioner without sufficient cause and since she caused cruelty to the petitioner, the present petition has been field for getting the relief sought for therein. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the counter filed on the side of the respondent, it is stated that the marriage between the petitioner and respondent has been performed on 10.07.2000. The respondent has never demanded for effecting partition. The respondent has been forced to perform domestic as well as agricultural works. It is false to say that the respondent has deserted the petitioner without sufficient cause. Further it is false to contend that the respondent has caused cruelty to the petitioner. Since the petitioner has tried to kill the respondent, the respondent has been driven to seek asylum in the house of her parents. The respondent has requested the petitioner to undergo medical treatment for getting child. But the petitioner has refused. There is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the rival evidence adduced on either side, the trial Court has allowed the petition and thereby dissolved the marriage between the petitioner and respondent. Against the order passed by the trial Court, the respondent as appellant has preferred H.M.C.M.A.No.7 of 2008 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed H.M.C.M.A.No.7 of 2008 and thereby set aside the order passed in H.M.O.P.No.56 of 2006 by the trial Court and ultimately dismissed the petition. Against the order passed in H.M.C.M.A.No.7 of 2008, the present Civil Miscellaneous Second Appeal has been preferred at the instance of the petitioner as appellant. 7. On the side of the appellant/ petitioner, the following substantial questions of law have been raised for consideration: (a) Whether the first appellate Court is correct in refusing to grant decree of divorce when the husband and wife are living separately for more than the period of two years? (b) Whether the first appellate Court is correct in deciding the appeal when there is no possibility for re-union and husband and wife are living separately for more than the period of five years? Whether it did not amount to irretrievable break down of marriage? (c) Whether the first appellate Court is correct in deciding the appeal and rejecting the prayer of divorce when the respondent wife has not approached the Competent Forum for restitution of conjugal rights? (d) Whether the first appellate Court is correct in deciding the appeal even without framing the issue independently in which it is mandatory under Order 41, Rule 27 C.P.C.? (e) Whether the first appellate Court is correct in reversing the fair and decretal order passed by the trial Court without meeting each and every reason stated by the trial Court? https://hcservices.ecourts.gov.in/hcservices/ 3 8. Before considering the rival submissions made on either side, the Court has to look into the following admitted facts as stated in the petition. 9. The petitioner has married the respondent on 10.07.2000 as per Hindu rites and caste custom and after marriage both of them have lived as husband and wife for a short span and unfortunately both of them have not been blessed with any child. 10. The present petition has been filed under Sections 13 (1) (i- a) and (i-b) of the Hindu Marriage Act, 1955. The first and foremost ground urged on the side of the petitioner is that the respondent has deserted the petitioner without sufficient cause. The second ground urged on the side of the petitioner is that the respondent has caused cruelty to the petitioner. The trial Court has accepted the contention putforth on the side of the petitioner. But the first appellate Court has rejected the contention putforth on the side of the petitioner and ultimately dismissed the petition. 11. The learned counsel appearing for the appellant/petitioner has repeatedly contended that from the inception of marriage, the respondent has refused to live with the petitioner and she persistently demanded to effect partition and also directed the petitioner to set up a separate family and since the petitioner has failed to concede her demand, she abruptly left the matrimonial abode on 22.12.2003 and all efforts taken by the petitioner so as to bring her to matrimonial home have become futile and further the respondent has given a false police complaint and thereby caused cruelty to the petitioner and under the said circumstances, the present petition has been filed for getting divorce and the trial Court has rightly allowed the petition, but the first appellate court without considering the averments made in the petition and also the evidence let in on the side of the petitioner, has erroneously dismissed the petition and therefore the order passed by the first appellate Court is liable to be interfered with. 12. The learned counsel appearing for the respondent has contended that after marriage both the petitioner and respondent have lived together happily for a short period and subsequently the respondent has been forced to perform various works and she never demanded the petitioner for effecting partition of family properties and since the respondent has not been able to bear the torture given by the petitioner, she has chosen to live in her parents' house and in fact she has made various attempts so as to live with the petitioner and the trial Court without considering the genuine attempt made on the side of the respondent has erroneously allowed the petition, but the first appellate Court has rightly dismissed the same and therefore the order passed by the first appellate Court need not be interfered with. 13. As stated supra, the present petition has been filed on two grounds namely desertion and cruelty. In the petition, at paragraph No.2, it has been specifically stated that the respondent has insisted the petitioner to effect partition of family properties and since her request has been turned down, she abruptly left matrimonial abode on 22.12.2003. https://hcservices.ecourts.gov.in/hcservices/ 4 14. At this juncture, the Court has to look into the complaint alleged to have been given by the respondent in All Women Police Station. Even though, in the petition it has been specifically stated that on 22.04.2006, the respondent has given a police complaint in All Women Police Station, no copy of complaint has been marked. But at the same time, during the course of argument, the learned counsel appearing for the respondent has submitted a copy of the complaint dated 22.04.2006 and this Court has perused the same and found that only with a view to live with the petitioner, the respondent has given the complaint in question. If really, the respondent has acted without having any intention of living with the petitioner, definitely she would not have given such kind of police complaint and further the allegation made in paragraph No.2 of the petition to the effect that the respondent has insisted the petitioner to effect partition of family properties, is nothing but flimsy and the same cannot constitute the alleged cruelty and further the respondent has given the police complaint only for the purpose of joining with the petitioner. Simply because the respondent has given a police complaint against the petitioner, the Court cannot come to a conclusion that the respondent has caused cruelty to the petitioner. 15. The trial Court without considering the attempt made on the side of the respondent by way of giving police complaint, has simply dissolved the marriage held in between the petitioner and respondent. But the first appellate Court after having elaborate discussion has rightly found that the respondent has not deserted the petitioner without sufficient cause. In fact on the basis of the evidence given by the respondent, the Court can easily infer that on the side of the respondent, various efforts have been made so as to lead matrimonial life with the petitioner and therefore viewing from any angle, the grounds mentioned in the petition are not at all sufficient to dissolve the marriage held in between the petitioner and respondent and therefore the substantial questions of law raised on the side of the appellant/petitioner are not having substance at all and altogether the present Civil Miscellaneous Second Appeal deserves to be dismissed. 16. In fine, this Civil Miscellaneous Second Appeal deserves dismissal and accordingly is dismissed without costs and the order passed in H.M.C.M.A.No.7 of 2008 by the Principal District Court, Virudhunagar District at Srivilliputtur is confirmed. smn Sd/- Assistant Registrar[T&P] /True copy/ To Sub Assistant Registrar 1.The Principal District Judge, Virudhunagar District at Srivilliputtur. 2.The Subordiante Judge, Srivilliputtur. +1 cc to Mr.G.Marimuthu, Advocate SR.No.24739. +1 cc to Mr.B.Rajesh Saravanan, Advocate SR.No.24874. C.M.S.A(MD)No.36 of 2011 Dated:26.07.2011 4P/5C RPB 09.09.2011 https://hcservices.ecourts.gov.in/hcservices/