The burden of proof lies with the party making the allegations, and without sufficient evidence, the court cannot grant a divorce.

JUDGMENT

(Prayer: Civil Miscellaneous Second Appeal filed under Section 28 of Hindu Marriage Act read with Section 100 of C.P.C, to set aside the judgement and decree dated 22.01.2013 in C.M.A.No.16 of 2011 on the file of the Additional District & Sessions Judge, Tirunelveli confirming the fair and decreetal order passed in H.M.O.P.No.24 of 2007 dated 07.06.2011 on the file of Subordinate Court, Ambasamudram and allow this second appeal.)

1. The appeal has been filed by the husband challenging the concurrent findings of the trial Court as well as the Appellate Court wherein his prayer for divorce has been rejected.

2. The husband has filed a divorce petition contending that he got married with the respondent on 01.06.1984 and after marriage while the couple were living in Mumbai, the wife has exhibited bad character. The wife came to her parental house for delivery in which a girl child was born. The said child had passed away in 15 days. The wife wanted to be at Ambasamudram for some more time in order to get out of the grief due to death of the child. However, while she was in Ambasamudram, she developed illicit intimacy with one Jayaraman and the said Jayaraman has addressed several letters to his wife.

3. The husband had further contended that he had again taken her back to Mumbai and in Mumbai on 21.06.1986, the wife developed intimacy with one Muthusamy and the same was witnessed by him along with one Muthappa and Balasubramaniam. He had further contended that the wife had admitted about the illicit relationship with the said Muthusamy. In view of such bad character of the wife, both of them agreed to dissolve their marriage by some compromise before the village elders. As per the custom of Nadar Community People, a customary divorce was entered into between the parties and thereafter, the husband had left for Mumbai. Since the husband had immediately left for Mumbai, the divorce deed could not be executed on the said date.

4. The husband had further contended that a legal notice was issued to the wife on 08.10.1986 seeking divorce legally. Though the wife had received the same, she has not responded. The relatives of the wife had threatened the husband for payment of some maintenance amount and therefore, a divorce deed was prepared and the wife had received a sum of Rs.31,000/- as cash and another sum of Rs.28,000/- through demand draft for maintenance. The said document was executed on 03.04.1988.

5. After entering into such a divorce document, the husband had married another lady by name Muthulakshmi on 21.10.1986 and he is living a happy married life. However, the respondent wife had sent a legal notice on 25.05.1988 containing false allegations for which the husband has sent a reply on 21.06.1988. The wife had also lodged a complaint before the All Women Police Station, Tirunelveli and after enquiry, the police officials came to the conclusion that already divorce has taken place between the parties and the wife had also received maintenance amount and therefore, they closed the complaint. The wife is residing away from the husband for more than 14 years.

6. The wife had filed M.C.No.4 of 2011 seeking maintenance before the Judicial Magistrate Court, Ambasamudram and an order was passed on 30.04.2003 directing the husband to pay maintenance. The husband had filed a revision before the Additional District Court, Tirunelveli in Crl.R.C.No.30 of 2003 and the same was allowed on 15.10.2003. Challenging the same, the wife had filed Crl.O.P.No.1977 of 2003 and the same was allowed by the High Court confirming the order of the Judicial Magistrate to pay maintenance to the wife.

7. The husband had further contended that after execution of the divorce deed, the wife had also married one Vellaidurai and she is leading a matrimonial life with him and hence, she is not entitled to any maintenance. The husband had further contended that the wife has obtained a certificate from the Taluk Office, Ambasamudram that she is a deserted woman