Back
2008 Supreme(Mad) 203
Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE G. RAJASURIA
D. Rajendran
Versus
R. Dhanalaxmi
C.M.S.A.No.45 of 1996
Decided On :Decided on : 23-01-2008
For the Appellant:K. Srinivasan, Advocate.
For the Respondent: No appearance.
Proper pleadings and evidence are essential for establishing grounds for divorce under the Hindu Marriage Act, and the burden of proof lies with the petitioner. Lack of seriousness about the plea and failure to invoke relevant sections can weaken the case.
Headnote:
Divorce - Hindu Marriage Act - Section 13(1)(ia) and (ib) - [Husband and Wife] - [Section 13(1)(ia), Section 13(1)(ib), Section 12(1)(a)] - The court discussed the grounds for divorce based on cruelty and desertion under the Hindu Marriage Act. It highlighted the definition of cruelty and mental cruelty as per various Supreme Court decisions and emphasized the need for proper pleadings and evidence. The court also pointed out the husband's failure to invoke Section 12(1)(a) for non-consummation of marriage, indicating his lack of seriousness about the plea. Additionally, it addressed the elements required to prove desertion and concluded that there was no ground for granting divorce.
Fact of the Case:
The husband filed for divorce based on cruelty and desertion, while the wife filed for restitution of conjugal rights. The trial court granted divorce and dismissed the restitution petition. The first appellate court reversed the divorce decree and dismissed both applications.
Finding of the Court:
The court found that the husband's plea lacked proper evidence and pleadings, and he failed to invoke Section 12(1)(a) for non-consummation of marriage. It also concluded that there was no desertion on the part of the wife.
Issues: The issues revolved around the grounds for divorce, including cruelty, non-consummation of marriage, and desertion, as well as the burden of proof and the evidence presented by both parties.
Ratio Decidendi: The court emphasized the need for proper pleadings and evidence, highlighted the husband's lack of seriousness about the plea of non-consummation, and addressed the elements required to prove desertion.
Final Decision: The Civil Miscellaneous Second Appeal was dismissed, confirming the first appellate court's decision to reverse the divorce decree and dismiss the O.P. for divorce. The court also urged the husband and wife to resume cohabitation instead of engaging in endless matrimonial litigation.
This appeal is focussed as against the Judgment and decree passed in H.M.C.M.A.No.9 of 1993 dated 12.01.1994 on the file of the learned District Judge, Tanjore, reversing the order passed in H.M.O.P.No.12 of 1992 dated 24.12.1992 on the file of the learned Subordinate Judge, Tanjore.
2. For convenience sake, the parties are referred to hereunder as husband and wife.
3. Niggard and bereft of details, pithily and precisely the relevant facts which are absolutely necessary and germane for the disposal of this Civil Miscellaneous Second Appeal could be portrayed thus:
The appellant is the husband of the respondent herein. Their marriage was solemnized on 11.06.1986. They have no issues. While so, the husband filed H.M.O.P.No.12 of 1992 in the Sub Court, Tanjore, seeking divorce by invoking Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 so to say on the ground of cruelty and desertion. The wife filed H.M.O.P.No.34 of 1992 for restitution of conjugal rights.
4. The gist and kernel of the allegations of the husband as against the wife is that she refused to cooperate with the husband for consummating the marriage by submitting herself to sexual intercourse with him and she with effect from 05.11.1989 started living separately from the husband.
5. Per contra, denying and refuting, challenging and impugning the allegations made by the husband, the wife would contend that the husband having been dissatisfied with the wifes failure to comply with his demand for dowry, started harassing her physically and mentally and that he only started living separately from her.
6. During the joint enquiry, the husband examined himself as P.W.1 along with P.W.2 andthe wife examined himself as R.W.1 along with R.W.2. No document was marked on either side.
7. Ultimately, the trial Court granted divorce and consequently dismissed the petition for restitution of conjugal rights.
8. Being aggrieved by such Judgment and decree of the trial Court, the wife filed two appeals in H.M.C.M.A.Nos.9 and 10 of 1993 before the District Court, Tanjore. The first appellate Court set aside the Judgment and decree of divorce and dismissed both the applications.
9. Being dissatisfied with the Judgment and decree of the first appellate Court, the husband filed this Civil Miscellaneous Second appeal on the following main grounds:
The first appellate Court without any sound reason reversed the decree of divorce. The first appellate Court having dismissed the application for restitution of conjugal rights filed by the wife should have confirmed the decree of divorce. The first appellate Court failed to appreciate that the husband took steps to resume cohabitation with the wife, still she refused to respond. The first appellate Court without considering the evidence of P.W.2 and the circumstances involved in this case including the conduct of the wife, wrongly held that the case of the husband was not believable as there was no medical evidence in favour of the plea of the husband relating to his plea of non-consummation of the marriage. Accordingly he prayed for setting aside the order of the first appellate Court in reversing the decree of divorce granted by the trial Court and for restoring the decree of divorce.
10. Heard both sides.
11. At the time of admitting this second appeal, the following substantial questions of law were framed:
(1) Whether the finding of the lower Appellate Court are vitiated by its failure to draw the legal inferences on the conduct of the respondent and that the respondents allegations of dowry harassment was not proved?
(2) Whether the lower appellate Court is right in placing the burden upon the husband to prove that the marriage is not consummated, especially when there is no issues?
(3) Whether the lower appellate Court is right in not taking the adverse inference against the respondent when she did not come forward to be examined by a Medical Expert?
(4) Whether the findings of the lower appellate Court vitiated by its fa
