The court held that the divorce petition lacked sufficient evidence of mental cruelty and desertion, and that the litigation initiated by the wife for the protection of her rights could not be considered as grounds for mental cruelty.

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 order and decreetal order dated 09.11.2010 in CMA.No.2 of 2010 on the file of the District Judge, Karur reversing the order and decreetal order dated 23.12.2009 in HMOP.No.35 of 2007 on the file of the Additional Subordinate Judge , Karur.)

The respondent herein had filed HMOP.No.35 of 2007 on the file of the Additional Subordinate Court, Karur seeking divorce on the ground of cruelty and desertion. The said petition was dismissed by the Trial Court. Challenging the same, the respondent herein had filed CMA(MD).No.2 of 2010 before the District Court, Karur. The First Appellate Judge after re-appreciation of oral and documentary evidence, has allowed the appeal and granted a decree for divorce. Challenging the same, the present Civil Miscellaneous Second Appeal has been filed by the appellant/wife.

2. The appellant herein had got married to the respondent on 14.09.1987. Out of the said wedlock, a son was born to them who is now a major.

3. The summary of the allegations in the divorce petition are as follows:

(i). The wife was leading an adulterous life with one Madasamy who was the then Special Officer of the Karur Town Co-operative Bank. Despite several requests, the wife refused to abandon her illicit activities. The husband had lodged a complaint before the Judicial Magistrate No.I, Karur which was dismissed after enquiry.

(ii). The husband had purchased an immovable property under a registered sale deed dated 21.08.1991 in the name of his wife out of love and affection. He had further alleged that he had obtained loan from the Co-operative Bank and constructed the building. However, the wife had made a claim to the said property and filed O.S.No.46 of 2002 seeking injunction not to disturb her possession. As a counter blast, the husband had filed O.S.No.96 of 2002 seeking declaration of title and permanent injunction. The suit filed by the husband in O.S.No.96 of 2002 was dismissed. The husband had filed A.S.No.20 of 2005 before the Subordinate Court, Karur. The learned Subordinate Judge had decreed the suit partly to the effect that the land belongs to the husband and the building belongs to the wife. Challenging the same, the wife had filed S.A(MD).No.1068 of 2007 and the same is pending before the High Court.

(iii). The wife had initiated O.S.No.708 of 2005 before the District Munsif Court, Karur seeking guardianship of the minor son.

(iv). The wife had lodged a false complaint as against the husband as if he had claimed dowry and after contest the same was dismissed by the Judicial Magistrate on 02.02.2005.

(v). The husband has contended that for the past 10 years, there is no connection between him and the respondent. Therefore, the respondent/wife is guilty of desertion for the past 10 years.

4. The summery of contentions of the wife:

(i). The immovable property was purchased out of earning of the wife and the construction was put up only with a loan obtained from the Bank by the wife. Therefore, the husband has no title whatsoever over the property.

(ii). The allegation of the adulterous life is completely false and therefore, the complaint lodged by the husband was dismissed by the Judicial Magistrate, Karur.

(iii). There is no panchayat or any mediation between the parties.

(iv). Right from the inception of marital life, the husband had harassed her and demanded dowry and she had parted away 30 sovereign of jewels presented to her at the time of her marriage.

(v). The wife is delivering arulvakku and used to receive money as gift. From the said amount and also from the financial assistance of her parents, sister and brother, the wife had purchased two house sites at Puliyur under two different sale deeds date