The court concluded that unchallenged testimony constitutes admission and can validate claims of cruelty in divorce proceedings.

JUDGMENT :

P. DHANABAL, J.

1. This Civil Miscellaneous Second Appeal has been preferred as against the order passed in H.M.O.P.No.55 of 2004 on the file of the Principal Sub Court, Nagercoil, dated 22.06.2011. Before the Trial Court, the appellant herein has filed a petition for seeking divorce as against the respondent herein and the said petition was allowed and as against the order passed by the Trial Court, the respondent herein has preferred the first appeal before the District Judge and the First Appellate Court has reversed the order of the Trial Court and allowed the appeal. As against the order passed by the First Appellate Court, the respondent therein has preferred this Civil Miscellaneous Second Appeal.

2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Tribunal.

3. The brief averments of the petition filed before the Trial Court are as follows:

The marriage between the petitioner and the respondent took place on 22.01.1997 at Parvathipuram. After marriage, due to the harassment made by the respondent, the petitioner left from his own house and residing in the rental house at Parvathipuram and Tharavillai. Due to the wedlock, the petitioner and the respondent have three female children. The respondent threaten to kill him through her relatives and she also mentally affected and thereby, he gave treatment to her. Further the petitioner lodged a complaint as against the respondent before All Woman Police. Thereafter, the respondent neglected the petitioner and left from the matrimonial home and resided with her parents. Thereafter, the respondent gave a complaint alleging that the petitioner assaulted her. Thereafter, the respondent started to give torture to the petitioner and his relatives through her sister's husband. Further, the respondent threatened that she would commit suicide after killing him. Thereafter, the petitioner apprehends to live with the petitioner and unable to lead family life with the respondent. On 08.04.2004, the petitioner issued notice to the respondent. After receipt of the said notice, the respondent gave a false reply. The respondent very often abused with filthy language and without knowledge of the petitioner, left from the matrimonial home and thereafter, the petitioner used to take back her to his house. When the petitioner asked about the same, the respondent told that he is not beauty and she disliked him. Further, she threatened that she is living along with her sister's husband. Thereby, she caused cruelty to the petitioner.

4. The gist of the counter filed by the respondent are as follows:

The averments made in paragraph No.1 of the petition are all admitted. Paragraph No.2 of the petition are all denied as false. At present, the respondent is residing with her parents. It is true that after the marriage, three children born to them. It is false to state that she was mentally affected. The averments made in the petition that she threatened the petitioner along with her sister's husband is denied as false. The petitioner already gave a complaint as against the respondent and the same was closed as false. She gave a complaint against the petitioner, since he assaulted her. Already, the respondent has issued reply for the notice issued by the petitioner. The averments made in paragraph Nos.8 to 11 are all denied as false. She only maintaining the children. The petitioner only neglected the respondent due to the ill-advice of his sister Anbumathi. Therefore, the petition is liable to be dismissed.

5. Before the Trial Court, on the side of the petitioner, he examined P.W.1 and P.W.2 and marked Exhibits P.1 to P.6. On the side of the respondent, R.W.1 was examined and no documents were marked.

6. After considering the evidences adduced on both sides, the Trial Court has allowed the petition and granted divorce. Aggrieved by the said order, the respondent wife has preferred an appeal before the District Court, Nagercoil an