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2018 Supreme(Mad) 1838
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J. NISHA BANU, J.
E. Nagalakshmi @ Sharmila - Appellant
Vs.
M. Karthick - Respondent
C.M.S.A. (MD) Nos. 1 & 2 of 2016; C.M.P. (MD) Nos. 852 & 853 of 2016
Decided On : 14-09-2018
Advocate Appeared:
For the Appellant : Mr. C. Vakeeswaran
For the Respondent: Mr. R. Suriyanarayanan
The main legal point established is the concept of irretrievable breakdown of marriage as a ground for divorce under Section 13(1)(i)(a) and Section 13(1A)(ii) of the Hindu Marriage Act.
Headnote:
Divorce - Matrimonial Dispute - Hindu Marriage Act - Section 13(1)(i)(a), Section 13(1A)(ii) - Gurbux Singh Vs Harminder Kaur, Ramachander Vs Ananta, A. Jayachandra Vs. Aneel Kaur, Govindaraju Vs. Mariamman, Sugani Vs. Rameshwar Das & another, Sujata Uday Patil Vs. Uday Madhukar Patil, Samar Ghosh Vs. Jaya Ghosh, Ravi kumar Vs Julmidevi
Fact of the Case:
The appellant and the respondent got married in 2010 but faced matrimonial disputes leading to separate court cases for divorce and restitution of conjugal rights. The trial court allowed the restitution of conjugal rights and dismissed the divorce petition. The husband appealed, and the lower appellate court declared the marriage null and void, dismissing the wife's petition for restitution of conjugal rights. The wife appealed against this decision.
Finding of the Court:
The court found that the marriage had irretrievably broken down due to the long period of continuous separation and the husband's refusal to live with the wife. It concluded that the marriage had ruptured beyond repair, leading to an irretrievable breakdown of marriage. The lower appellate court's decision to grant divorce was confirmed by the court.
Issues: The issues revolved around the allegations of cruelty, non-cooperation for coitus, and the irretrievable breakdown of the marriage.
Ratio Decidendi: The court applied the concept of mental cruelty and considered the long period of continuous separation as grounds for an irretrievable breakdown of the marriage. It emphasized the importance of the applicability of law in matrimonial matters and the welfare of the parties involved.
Final Decision: The court dismissed the appeals and confirmed the lower appellate court's decision to grant divorce. No costs were awarded in the case.
Both the Civil Miscellaneous Second Appeals have been filed against the decree and judgments dated 11.12.2015 in H.M.C.M.A. Nos. 5 & 6 of 2014 Additional District Court, Virudhunagar reversing the decree and judgments dated 12.09.2014 in H.M.O.P. Nos. 111 and 103 of 2013 of the file of the Sub-Court, Virudhunagar.
2. Since the issues are inter-woven to each other, both the appeals are taken up together and decided by this common judgment.
3. This appellant herein is the wife of the respondent herein. For the sake of convenience, the parties are referred to as per the rank mentioned in the civil miscellaneous second appeals.
4. Sans unnecessary details, the facts are depicted below:-
4.1. The marriage between the appellant and the respondent was solemnised on 24.11.2010. Due to matrimonial dispute, the appellant herein left the matrimonial home on 27.01.2011 wherefrom the litigation sprouted out. To put it in a nutshell, originally, the respondent herein filed a Petition in H.M.O.P.No.597 of 2011 for divorce against his wife on the file of the Family Court, Madurai. During its pendency, the appellant herein filed a petition against this respondent in H.M.O.P.No.01/2013 for restitution of conjugal rights on the file of Sub-Court, Sankarankovil. Pursuant to the order passed by this Court vide TR.CMP(MD).No.75 of 2013 dated 30.10.2013, both the cases were transferred to the Sub-Court, Virudhunagar, wherein the case of the husband had been taken as H.M.O.P. No. 111 of 2013 and the case of the wife, had been taken as H.M.O.P.No.103 of 2013 on the file of the Sub- Court, Virudhunagar. Considering the fact that the issue involved in both cases are between the husband and wife, both cases had been tried jointly by the lower Court and the evidence had been recorded in H.M.O.P.No.111 of 2013.
5. The trial Court after careful consideration allowed the restitution of conjugal rights filed by the wife vide its order dated 12.09.2014 in H.M.O.P. No. 06/2014 and dismissed the divorce petition filed by the husband in H.M.C.M.A. No. 5 of 2014.
6. Assailing over the findings of the trial Court, the husband preferred appeals in H.M.C.M.A. Nos. 5 and 6 of 2014 on the file of Additional District court, Virudhunagar, dated 11.12.2015.
7. The lower appellate Court, after appreciating the evidence on record and relying upon the judgments of this Court as well as the Supreme Court tried both the petitions together and declared, that the marriage between the appellant and the respondent is null and void and further dismissed the petition filed by the appellant for restitution of conjugal rights.
8. Fulminating at the decision and findings of the lower Court, the wife has preferred the Civil Miscellaneous Second Appeals as against the decree and judgments dated 11.12.2015 in H.M.C.M.A. Nos. 5 & 6 of 2014 Additional District Court, Virudhunagar for the relief stated supra.
9. Learned counsel appearing for the appellant would submit that the marriage in dispute was registered under the provisions of the Tamil Nadu Registration of Marriage Act, 2009. The lower appellate Court failed to consider that the marriage was solemnized on 24.11.2010 and the appellant left the matrimonial home on 27.01.2011. So, the appellant and the respondent lived together only for two months. In between these months, the respondent worked in Chennai and therefore, there is no co-habitation between the appellant and the respondent and they hardly lived together only for a few days. In otherwords, there is no question of cruelty made by this appellant in between these few days as alleged by the respondent. The lower appellate Court without appreciating such vital point derailed the just and fair judgment made in H.M.O.P. No. 103 and 111 of 2013 on the file of the Sub- Court, Virudhunagar dated 12.09.2014. Further, the lower appellate Court failed to consider that the husband examined himself and his father as a witness and there were no independent witnesses examined on his side i
