1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:11.07.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM C.M.S.A.(MD).No.6 of 2011 Devaki ... Appellant/Appellant/Respondent Vs. Mayalagu ... Respondent/Respondent/Petitioner Prayer: Appeal filed under Section 28 of the Hindu Marriage Act r/w under Section 100 of the Civil Procedure Code against the judgment and decree of the Additional District Judge, Fast Track Court No.II, Pattukkottai in C.M.A.No.21 of 2007 dated 15.09.2010 uphold the judgment and decree passed by the Subordinate Judge, Pattukottai dated 14.08.2007 in H.M.O.P.No.19 of 2003. For Appellant :Mr.P.Natarajan For Respondent :Mr.T.M.Madasamy J U D G M E N T This civil miscellaneous second appeal has been directed against the concurrent orders passed in H.M.O.P.No.19 of 2003 and in C.M.A.No.21 of 2007 by the Sub-Court, Pattukottai and by the Additional District (Fast Track) Court, No.II, Pattukkottai respectively. 2.The respondent herein as petitioner has filed H.M.O.P.No.19 of 2003 on the file of the trial court under Section 13(1)(1a) of the Hindu Marriage Act, 1955 praying to dissolve the marriage held in between him and the respondent. 3.It is averred in the petition that the marriage of the petitioner and respondent has been conducted on 12.06.2002. Subsequently, both of them have lived in Naduvikottai village. The respondent has served as a nurse in Pattukkottai Government hospital at the time of marriage. The respondent has used to treat the petitioner disrespectfully and thereby caused mental cruelty. Under the said circumstances, the present petition has been filed for getting the relief sought for therein. 4.In the counter filed on the side of the respondent, it is averred that at the time of marriage, enormous seer varisai has been given. From the date of marriage, the respondent has served as a dutiful wife. The petitioner has demanded more dowry and the demand of the petitioner has not been meted out by the respondent. The petitioner is having illicit intimacy with one Vijaya, who is none other than the wife of his brother. On 08.07.2003, the respondent has given a police complaint against the petitioner and his family members. The petitioner has given assurance to set up a separate family. On 11.09.2003, the respondent has given another complaint. There is no merit in the petition and the same deserves to be dismissed. 5.On the side of the petitioner, a replication counter has been filed, wherein all the averments made in the counter filed on the side of the respondent have been denied. https://hcservices.ecourts.gov.in/hcservices/ 2 6.The trial court after considering the evidence available on record, has allowed the petition. Against the order passed by the trial court, the respondent as appellant has preferred C.M.A.No.21 of 2007 on the file of the first appellate court. 7.The first appellate court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and thereby confirmed the order passed by the trial court. Against the concurrent orders passed by the courts below, the present civil miscellaneous second appeal has been preferred at the instance of the respondent as appellant. 8.Before considering the rival submissions made on either side, it would be more useful to narrate the following admitted facts. 9.It is an admitted fact that the marriage of the petitioner and respondent has been performed in accordance with the Hindu rites and caste custom on 12.06.2002. After marriage, both of them have lived as husband and wife for a short span in the ancestral house of the petitioner and subsequently despair has cropped up in their marital life and thereafter both of them are living separately. 10.The present petition has been filed under Section 13(1)(1a) of the Hindu Marriage Act, 1955 stating that the respondent has caused cruelty to the petitioner. The courts below have concurrently accepted the contention urged on the side of the petitioner. 11.The learned counsel appearing for the appellant/respondent has vehemently contended that the marriage between the petitioner and respondent has been performed on 12.06.2002 and at the time of marriage, enormous properties have been given on the side of the respondent by way of seer varisai and after some time, the petitioner and his family members have used to torture the respondent by way of demanding dowry and since the respondent has not been able to meet out the demand made by the petitioner and his family members, she has been driven out from the marital abode and it is false to say that the respondent has caused cruelty to the petitioner and the courts below, without considering the definite stand taken on the side of the respondent and also without considering the evil design and oblique motive of the petitioner, has erroneously accepted his contention and therefore the concurrent orders passed by the courts below are liable to be interfered with. 12.In order to dispel the contention urged on the side of the appellant/respondent, the learned counsel appearing for the respondent/petitioner has also equally contended that at the time of marriage, the respondent has served as nurse in Government Hospital, Pattukkottai and even prior to marriage, the respondent is having illicit intimacy with so many persons and further the petitioner and his family members have not at all demanded anything by way of dowry from the respondent and further the respondent herself has admitted in her evidence that there is no carnal copulation in between her and the petitioner and the courts below, after considering the available evidence on record, has rightly rejected the defence taken on the side of the respondent and therefore, the concurrent orders passed by the courts https://hcservices.ecourts.gov.in/hcservices/ 3 below need not be interfered with. 13.As stated earlier, the marriage between the petitioner and respondent has been performed on 12.06.2002 as per Hindu rites and caste custom. The specific stand taken on the side of the respondent/petitioner is that after marriage, both the petitioner and respondent have lived together as husband and wife for a short span and subsequently, the respondent has had a considerable change and she caused cruelty to the petitioner. 14.The defence taken on the side of the appellant/respondent is that after marriage, the petitioner and his family members have consistently made dowry demand. In fact, the respondent has given a complaint on 02.09.2003 to the Chief Minister of Tamil Nadu. The marriage between the petitioner and respondent has been taken place on 12.06.2002. Within a short span, the respondent has given a complaint dated 02.09.2003 to the Chief Minister of Tamil Nadu. On the side of the petitioner, P.Ws.2 and 3 have been examined. Both of them have consistently stated about the alleged adulterous life of the respondent. In fact, this Court has closely perused the entire evidence given by P.Ws.2 and 3 and ultimately found that there is no motive between the respondent and P.Ws.2 and 3. Under the said circumstances, the evidence given by Pws.2 and 3 cannot be discarded. Even though the alleged adulterous life of the respondent has not been mentioned as one of the grounds in the present petition, the evidence given by P.Ws.2 and 3 has virtually encrusted the stand taken on the side of the petitioner and further with a short span of marriage, the respondent has given Ex.P.3 on 02.09.2003. The respondent has been examined as P.W.1. She has clearly admitted in her evidence that there is no co-habitation between her and petitioner. Therefore, it is needless to say that from the date of marriage, both the petitioner and respondent have not lived happily as husband and wife. Considering the facts marshalled supra, the court can very well come to a conclusion that the marriage between the petitioner and respondent is liable to be dissolved. 15.The courts below, after considering the available evidence on record, have rightly rejected the defence taken on the side of the appellant/respondent. In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the appellant/respondent and altogether the present civil miscellaneous appeal deserves to be dismissed. 16.In fine, this civil miscellaneous second appeal deserves dismissal and accordingly is dismissed without costs. Consequently, connected M.P.No.1 of 2010 is also dismissed. The concurrent orders passed by the courts below are confirmed. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 4 TO 1.The Additional District Judge, Fast Track Court No.II, Pattukkottai. 2.The Sub-Court, Pattukottai. +1cc to Mr.P.Natarajan, Advocate, SR.No.22393 +1cc to T.M.Madasamy, Advocate, SR.No.22422 vs GH : 05.08.2011 : 4p/5c C.M.SA.(MD).No.6 of 2011 https://hcservices.ecourts.gov.in/hcservices/