The court upheld the principle of considering evidence of cruelty and the welfare of minor children in divorce cases.

JUDGMENT :

G.JAYACHANDRAN, SUNDER MOHAN, JJ.

PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act, to call for the records of the order and decretal order passed in I.D.O.P.No.161 of 2018 (Previously ICOP No.453 of 2014) on the file of the learned District Judge, Family Court, Kanyakumari Division at Nagercoil and set aside the same by allowing this present Civil Miscellaneous Appeal.

This Civil Miscellaneous Appeal is filed by the wife being aggrieved by the decree of divorce passed by the Family Court, Kanyakumari at Nagercoil in I.D.O.P.No.161 of 2018.

2. This Court, on 29.11.2019, after hearing the parties and the counsel appearing for the respective parties and perusal of the records, has passed the following order:-

“We have heard Mr.K.Ragatheesh Kumar, learned counsel for Mr.P.Muthuvel, learned counsel for the petitioner and Mr.S.R.Sathan Boopathy, learned counsel for the respondent.

2. This appeal by the wife is directed against the judgment and decree passed in I.D.O.P.No.161 of 2018 on the file of the learned District Judge, Family Court, Kanyakumari District at Nagercoil.

3. The respondent/husband filed petition under Section 10(x) of the Indian Marriage and Divorce Act, 1869 to dissolve the marriage between the appellant and the respondent solemnized on 22.10.2001. Before the Family Court, the respondent/husband himself was examined as P.W.1 and P.W.2, who was working as Attender in a Hospital, where the appellant had taken treatment, was also examined. On the side of the respondent/husband ten documents were marked including medical records of the appellant/wife. The appellant examined herself as R.W.1. The learned Family Court, after considering the documentary evidence has framed the following three issues:-

“1. Whether the petitioner-husband proved the plea of cruelty against the respondent/wife?

2. Whether the petitioner is entitled for the relief of divorce from the respondent?

3. To what other relief the petitioner is entitled?”

4. The petition was allowed holding that the appellant/wife had treated the husband/respondent with cruelty. The learned Family Court also took note of the fact that two minor girl children were always under the care and custody of the respondent/husband. The appellant wife did not take steps even to visit them. The respondent filed petition for declaring him as guardian of the two minor girl children in G.W.O.P.No.150 of 2018 and the same was allowed by an order dated 29.06.2018. It is note worthy to state that the appellant/wife did to challenge the said order and the children are under the care and custody of the respondent/husband.

5. Further more, we note that an Interlocutory Application was filed in the divorce proceedings by the respondent/wife in I.A.No.175 of 2015 seeking a sum of Rs.8,000/- per month as interim alimony and also to pay a sum of Rs.10,000/- as litigation expenses. Against the order passed in the said petition dated 27.06.2016, the respondent/husband filed C.R.P.(MD)No.1786 of 2016. The said petition was dismissed. The learned counsel for the respondent/husband submitted that when the Civil Revision Petition was pending before this Court, the learned Single Bench of this Court had attempted for settlement between the parties. Inspite of best efforts, no settlement was arrived at.

6. The learned counsel for the respondent/husband submit that at this juncture, to refer the matter for mediation as requested by the learned counsel for the appellant, is a wasteful exercise and that the respondent/husband is not willing to participate in any mediation proceedings except with regard to maintenance amount, which the respondent/husband has been directed to pay in terms of the impugned order. It is the submission of the learned counsel for the respondent that the respondent/husband is willing to discuss for permanent alimony to be paid in respect of the direction issued. In other aspects, the respondent is not willing to participate in any mediation pr