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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Thatchinamoorthy
Versus
Sivagamy
C.M.A. No.789 of 2005
Decided On : 05-04-2010
Based on the provided legal document, the key points are as follows:
The marriage was solemnized on 2nd 1997, and the appellant filed a petition for divorce primarily on the grounds of premarital sex, premarital pregnancy, and desertion. However, the court found that the petition was primarily based on allegations of premarital sex and pregnancy, which are subject to specific legal conditions under the Hindu Marriage Act. The court noted that the appellant was aware of the premarital pregnancy on the date of marriage but still married the respondent, which affects the maintainability of a nullity petition based on those grounds (!) (!) .
The court observed that the appellant did not file the petition within the prescribed time limit for challenging the marriage on the grounds of premarital pregnancy, rendering the petition under Section 12(1)(d) not maintainable. The evidence did not sufficiently establish that the respondent was pregnant by someone other than the appellant at the time of marriage, and the presumption of legitimacy of the child was upheld, given the lack of evidence to rebut it (!) (!) (!) .
The appellant's allegations of illicit intimacy and premarital pregnancy were not conclusively proved. The evidence, including medical opinion and witness testimony, did not substantiate the claim that the respondent was pregnant before marriage or that the child was born through someone other than the respondent. The court emphasized that the burden of proof to establish non-access or illegitimacy rests heavily on the appellant, and in this case, it was not discharged (!) (!) (!) (!) .
The appellant attempted to rely on a release deed to support the claim that the marriage was dissolved by mutual consent, but the court found that the document lacked legal validity and was not supported by proper evidence or customary proof. The court also noted that the respondent did not accept the dissolution and denied signing any such agreement voluntarily (!) .
The appellant's claim of desertion was not substantiated by evidence. Although the petition mentioned desertion, there was no clear proof that the respondent abandoned the marriage without reasonable cause, especially since she expressed willingness to live with the appellant and was driven out due to the appellant's illicit relationship with another woman. The court clarified that desertion requires a continuous intention to end the marital relationship, which was not established here (!) (!) (!) .
Evidence demonstrated that the appellant was living with another woman, Muthulakshmi, as evidenced by electoral records and other documents showing cohabitation and the birth of a child with her. This supported the respondent’s claim that the appellant developed illicit intimacy and was living as her husband, which was consistent with the allegations of infidelity and the breakdown of the marriage (!) (!) (!) .
The court concluded that the family court’s dismissal of the divorce petition was justified, as the appellant failed to prove the grounds of premarital sex, pregnancy, or desertion. The evidence did not support the claim that the respondent deserted the marriage or that the marriage could be dissolved on the grounds alleged. The court upheld the presumption of legitimacy of the child and found no infirmity in the family court’s judgment (!) .
The appeal was dismissed, and the appellant was ordered to pay costs to the respondent. The connected miscellaneous petition was also dismissed (!) .
In summary, the court rejected the appellant’s grounds for divorce based on premarital sex, pregnancy, and desertion, primarily due to insufficient evidence and procedural limitations. The evidence of illicit intimacy with another woman and the subsequent living arrangements supported the conclusion that the marriage had irretrievably broken down, but this was not sufficient to grant the divorce under the specified legal provisions.
Feeling aggrieved by the dismissal of his divorce petition filed on the ground of desertion in M.O.P.No.38 of 2000 on the file of Family Court, Pondicherry, husband has filed this appeal.
.2. The marriage between the Appellant and Respondent was solemnized on 2. 1997. Briefly stated the case of the Appellant/husband is as under:
.Even during Pen Azhaippu (TAMIL) on 2. 1997, the Respondent vomited in the presence of the relatives and the Appellant came to know from the neighbours of Respondents house that she had illicit intimacy with another person in her locality and due to premarital sex, she conceived before the marriage itself and to avoid any embarrassment, her family immediately arranged for the said marriage. Though Appellant had married her, he was not having any sexual contact with her. Only after much persuasion, Respondent came for medical check up on 13. 1997 and the doctor has confirmed her pregnancy. According to the Appellant, he has inquired the Respondent about the pregnancy and she has openly agreed the truth. Thereafter elders of both families tried to sort out the problem and according to the Appellant, Respondent deserted the Appellant in the month of March, 1997. Respondent delivered a baby on 119. 1997. With the intervention of elders, both the Appellant and Respondent entered into Ex.P.1 –consent letter/release deed for dissolution of marriage dated 27. 1999. Alleging that there was no re-union between the Appellant and Respondent and that she has deserted the Appellant without any reasonable cause. Appellant filed petition under Section 13(1)(ib) of the Hindu Marriage Act (1955) and under I(vi) and 4(a)(vi) of the rules under Hindu Marriage Act praying to dissolve the marriage.
3. Emphatically denying any pre-marital pregnancy and the alleged illicit intimacy, the Respondent/wife filed counter contending that Appellant a drunkard and he used to come late in the night and beat the Respondent. In the 1st week of April, 1998, the Appellant had driven out the Respondent from the matrimonial house and she was forced to take shelter at her brother Muruganandam’s house. The child was born on 110. 1997 and according to the Respondent, in medical history, child could be born in 8 ½ months duration. She has also denied any desertion and alleged that the Appellant had driven her away from the house without any reasonable cause. Respondent has alleged that at the time of mediation. Appellant had obtained her signature in the stamp paper and that she was not permitted to read the contents of the documents and she was forced to sign in the document. After the marriage, the Appellant had Illicit intimacy with one Muthulakshmi and when she questioned the illicit intimacy of the Appellant with the said Muthulakshmi, the Appellant drove her away out of the house and Respondent was forced to take shelter in the house of her brother Muruganandam and the Respondent prayed for dismissal of the petition.
4. On the above pleadings, seven issues were framed by the trial Court. Before the trial Court, on behalf of the Appellant, the Appellant was examined as P.W.1 and the neighbours were examined as P.Ws.2 and 3 and Exs.P.1 to P.8 were marked. On behalf of the Respondent. Respondent was examined as R.W.1 and the neighbours, were examined as R.Ws.2 to 6 and Exs.B.1 to B.7 were marked.
5. Upon consideration of oral and documentary evidence, the Family Court negatived the plea of premarital sex and pregnancy. The Family Court further held that the Appellant is such a person who is ready to throw any wild allegation against the Respondent. The trial Court further held that the Respondent proved the illicit intimacy of the Appellant with one Muthulakshmi and when she questioned about the illicit intimacy of the Appellant, she was driven out of the house in April 1998. Observing that there was no animus desidendi and that the Respondent was driven out of the matrimonial house by the Appellant, the Family Court dismisse
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