IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.06.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA C.M.A.NO.896 of 2008 Mohana .... Appellant/Respondent Vs. D.Jagannathan .... Respondent/Appellant For Appellant : Ms.Y.Kavitha For Respondent : Mr.D.Jagannathan Civil Miscellaneous Appeal filed under Section 28 of the Hindu Marriage Act Family Court Act against the Judgment and decree in H.M.O.P.No.88 of 2005 on the file of Prl.Subordinate Judge, Chengalpalttu dt.28.06.07. JUDGMENT (Judgment of the Court was made by K.RAVIRAJA PANDIAN,J.) The Civil Miscellaneous Appeal is filed against the against the Judgment and decree in H.M.O.P.No.88 of 2005 on the file of Principal Subordinate Judge, Chengalpalttu, whereby the marriage between the appellant and the respondent solemnized on 23.2.1992 was ordered to be dissolved. 2.It is the case of the respondent/husband that the marriage between the appellant and the respondent took place on 23.2.1992. After the marriage, the appellant used to quarrel with the respondent by using filthy language and deserted him from April 1992. She always used to ridicule the respondent as he is a handicapped person. She cares only the properties of the respondent and the appellant/wife deserted the respondent without any justifiable reason. But, with false allegations, she filed a petition seeking maintenance in M.C.No.2 of 2000 on the file of the Judicial Magistrate No.1, Ponneri and obtained an order against the respondent https://hcservices.ecourts.gov.in/hcservices/ for payment of maintenance ofRs.400/- per month. As the respondent suffered physically and mentally at the hands of the appellant, he filed petition for divorce on the ground of cruelty and desertion. 3. It is the case of the appellant/wife that after the marriage, the respondent and his mother did not provide proper food to the appellant. The appellant was assaulted by the respondent's mother. When she served food to the respondent, the respondent's mother told the respondent that the appellant might have mixed poison in the food to kill the respondent. The respondent's mother has prevented their marital life. The appellant was deserted by the respondent. After the death of the respondent's mother, the respondent is under the control of his sister. The appellant is always willing and ready to live with the respondent. 4. The trial Court after considering the evidence adduced by both the parties granted divorce on the ground of desertion and dissolved the marriage that took place between the appellant and the respondent on 23.2.1982. The correctness of the said order is now put in issue by the wife/the appellant in this appeal. 5. Learned counsel appearing for the appellant/wife has very strenuously contended that the decree has been granted by the trial Court erroneously on the ground of cruelty. The allegation made by the respondent in the petition for divorce as to cruelty is very bald to the effect that the appellant had teased the respondent by calling her handicapped. It is true that the respondent is a handicapped person even prior to the marriage. Having known that the respondent is a handicapped man, the appellant married him. In such circumstances, the bald allegation of teasing the respondent as handicapped cannot per se be treated as cruelty. He further contended that the trial Court has taken note of the imputation in the legal notice issued by the appellant by calling the respondent as handicapped person. Even that cannot be regarded as the amount of cruelty, as the same was issued by the appellant's lawyer. A decree of divorce cannot be granted on the basis of bald and unestablished allegations. 6. On the other hand, learned counsel appearing for the husband also in equal vehemence submitted that the trial Court has given reasons after considering the evidence made available before it and the act of cruelty can only be stated or defined in a straight jacket formula. The magnitude of the same or effect of the same cannot be explained by means of words. If such accusation is made against a person, who is not really a handicapped, that would not cause any cruelty to the person. However,if such imputation is made against a person, who is really handicapped, definitely that would wound the feeling of the handicapped person, that too, from the mouth of the wife. https://hcservices.ecourts.gov.in/hcservices/ 7. We heard the argument of the learned counsel on either side. After arguing for some time, ultimately having come to know the position that there is no possibility for re-union, the parties agreed to settle the issue by means of a permanent settlement, which they have ultimately settled for a sum of Rs.2 lakhs. 8. Therefore, the consensus reached by the parties is recorded and the order of the trial Court is confirmed. The respondent/husband is directed to pay to the appellant a sum of Rs.2 lakhs towards permanent settlement. The payment so arrived at between the parties has to be paid by the respondent within a period of eight weeks from the date of receipt of copy of this order. With this observation, the civil miscellaneous petition is disposed of. No costs. Consequently, the connected M.P.NO.1 of 2008 is closed. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. usk To: The Prl.Subordinate Judge Chengalpattu + 1 CC To Mr.A.G.Damodaran, Advocate SR NO.31228 C.M.A.No.896 of 2008 SS(CO) SRA(12/07) https://hcservices.ecourts.gov.in/hcservices/