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2015 Supreme(Mad) 3439
IN THE HIGH COURT OF MADRAS
S. Manikumar and M. Venugopal, JJ.
L. Stella – Appellant
Vs.
V. Ponnusamy – Respondents
C.M.A. No. 1974 of 2015 and M.P. No. 1 of 2015
Decided On: 11.09.2015
Advocate Appeared:
For the Appellant : K.S. Karthik Raja
For the Respondents: K. Premkumar
Headnote:(a). Divorce Act, 1869 Sections 2, 10(1)(ix) and (x) Special Marriage Act, 1954, Section 11 – The behavior of the wife towards her husband was not good and she abandoned him even his health was very serious – There was nothing mentioned about any demand of dowry in the complaint executed by her against her husband – Under Special Marriage Act, 1954 there was no any obstacle for the husband for claiming the divorce – Also Divorce Act 1889 says that there is no need for the solemnization of the marriage between husband and wife – Provided that the husband and wife were Hindu and Christian respectively so the Divorce Act, Section 2 was applicable in the regards of the divorce.
(b). Divorce Act, 1869 Sections 2, 10(1)(ix) and (x) – Desertion defining – The desertion is that there must be some mental aspect on the part of the person who is being alleged for desertion - Mere living separately does not constitute the act of desertion but it must be done with some intention to live away and not caring for the other party – To constitute the act of desertion all the circumstance must be considered whether it was a deliberate action or just because of some reason beyond the control of the person who is alleged for desertion – So the physical and mental aspect both are important factors to constitute the act of desertion.
(c). Divorce Act, 1869 Sections 2, 10(1)(ix) and (x) – The cruelty defining – The cruelty should not be considered just only by a single act but must be look out towards the whole conditions between both the parties for a long period of time - In the law the tiny acts done by any party cannot be said as cruelty to other – It may be either mental or physical – The court in the present case by considering the factor that without any solid reason living separately by wife for around 14 years made husband entitled to get a decree of divorce.
M. Venugopal, J.
1. The Appellant/Respondent has preferred the present Civil Miscellaneous Appeal as against the Order dated 06.02.2015 in DOP. No. 122 of 2008 passed by the learned Additional Principal Judge, Additional Family Court, Coimbatore. The Learned Additional Principal Judge, Additional Family Court, Coimbatore while passing the Impugned Order in D.O.P. No. 122 of 2008 (filed by the Petitioner/Husband) on 06.02.2015 at Paragraph No. 12 had inter alia observed that the "failure of the respondent (Appellant) to perform the duty of a wife, is proved to have caused cruelty which is harmful to the Petitioner (Respondent/ Husband). Thus, the above said fact fits into the ground for dissolution of marriage adumbrated under Section 10(1)(x) of the Divorce Act, 1869" and resultantly allowed the Petition by dissolving the marriage solemnized between the parties that took place on 18.03.1991 and accordingly granted a decree for divorce.
2. Assailing the correctness of the Order dated 06.02.2015 in D.O.P. No. 122 of 2008 passed by the learned Additional Principal Judge, Additional Family Court, Coimbatore, the Appellant/Respondent (wife) has focused the present Civil Miscellaneous Appeal before this court as an aggrieved person.
3. The Learned Counsel for the Appellant/Respondent (wife) contends that the order of the learned Additional Principal Judge, Additional Family Court, Coimbatore in D.O.P. No. 22 of 2008 dated 06.02.2015 is against facts and evidence.
4. According to the Learned Counsel for the Appellant, the Learned Additional Principal Judge, Additional Family Court, Coimbatore had committed an error in allowing the Petition namely, D.O.P. No. 122 of 2008 for divorce filed by the Respondent/Husband under Section 10(1)(ix) & 10(1)(x) of the Divorce Act, 1869, when the marriage between the Appellant and the Respondent was solemnized under The Special Marriage Act, 1954.
5. The Learned Counsel for the Appellant proceeds to take a plea that the Learned Trial Judge had failed to appreciate that once the parties to the marriage performed the marriage and submit to the provisions of the Special Marriage Act, 1954, their marital relationship and their marital rights are governed by the said Act and as such, the parties are bound to seek redressal only under the said Act.
6. The Learned Counsel for Appellant brings it to the notice of this Court that the Appellant had filed the S.M.O.P. No. 192 of 2000 seeking the relief of 'Restitution of Conjugal Rights' on the file of Family Court and the same was allowed. Further more, the Respondent/Husband had filed S.M.O.P. No. 339 of 1998, seeking a relief of Divorce on the file of Family Court, Coimbatore and the same was dismissed as not pressed. In fact, these two aforesaid Petitions were filed under the Special Marriage Act, 1954 and when that be the fact situation, the Respondent/Husband strangely filed D.O.P. No. 122 of 2008 on the file of the trial court seeking the relief of divorce, which is impressible.
7. Advancing his arguments, the Learned Counsel for the Appellant submits that the Appellant/Wife performed her obligations as a dutiful wife, but, the Respondent/Husband demanded dowry and treated the appellant with cruelty. Unfortunately, these aspects were not taken into account by the learned Family Court Judge at the time of passing the Impugned Order in D.O.P. No. 122 of 2008.
8. The Learned Counsel for the Appellant takes a plea that the learned Additional Principal Judge, (Additional Family Court, Coimbatore had failed to see that despite sincere efforts by the Appellant/Wife, the Respondent/Husband had wantonly refused to live along with her. Further, only due to complete non co-operation by the Respondent/Husband, the Appellant/Wife is unable to lead a matrimonial life.
9. Conversely, it is contention of the Learned Counsel for the Respondent/Husband that the trial court came to the conclusion that the Appellant/Wife had deserted the Respondent/Husband from 30.03.199
