C.M.S.A(MD)No.25 of 2016

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 09.03.2023

CORAM

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

C.M.S.A(MD)No.25 of 2016

N.Ilavarasan

... Petitioner/ Appellant /

Appellant

Vs.

Indira

... Respondent / Respondent/

Respondent

PRAYER : This Civil Miscellaneous Second Appeal is filed under Section 28

of Hindu Marriage Act, 1955 read with Section 100 of Code of Civil Procedure,

to set aside the judgment and decree dated 23.03.2015 made in C.M.A.No.23 of

2014, on the file of III Additional District Court, Thanjavur confirming the

Judgment and decree dated 04.04.2014 made in H.M.O.P No.20 of 2009, on the

file of the Subordinate Judge, Pattukottai.

For Appellant

: Mr.P.Arun Jayatram

For Respondent

: Mr.K.Kumaravel

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C.M.S.A(MD)No.25 of 2016

JUDGMENT

The present Civil Miscellaneous Second Appeal has been filed by the

husband challenging the concurrent findings of the Courts below, dismissing his

application for grant of divorce on the ground of desertion and cruelty.

2. According to the learned counsel appearing for the husband, the wife

had deserted him on 29.01.2008 and sent a legal notice on 05.08.2008. The

Trial Court as well as the Appellate Court have arrived at a categorical finding

that the appellant/husband has not placed on record any specific instance of

cruelty that was meted out by the wife to the husband. In fact, the petitioner and

the respondent have been residing only under the same roof right from inception

and the same is not in dispute.

3. The Trial Court as well as the Appellate Court have arrived at a finding

that the couple got married in the year 1971 and they were living together for

more than 35 years without any dispute. Therefore, the allegations of cruelty on

the part of the husband for the past 30 years is unbelievable. The Trial Court as

well as the Appellate Court have also arrived at a finding that the husband and

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C.M.S.A(MD)No.25 of 2016

wife are living in the same address and the wife had produced Ex.R.11 and Ex.R.

12 to establish the fact that the husband and wife are residing in the same

address. Therefore, the question of alleged desertion by the wife has been

falsified by production of Ex.R.11 and Ex.R.12.

4. The first Appellate Court has also arrived at a specific finding that the

husband is not able to place on record any specific instance relating to cruelty.

The Appellate Court has also confirmed the finding that the husband and wife

are residing under the same roof and therefore, the ground of alleged desertion

has not been proved by the husband. Challenging the said concurrent findings,

the Civil Miscellaneous Second Appeal has been filed by the husband.

5. The Civil Miscellaneous Second Appeal has been admitted on the

following substantial questions of law:

“A. Whether the judgment and decree of the Lower

Appellate Court is in conformity with Order 41 Rule 31 of

C.P.C. wherein the Lower Appellate Court has not framed

necessary issues for determination and failed to render

finding on each issue separately?

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C.M.S.A(MD)No.25 of 2016

B. Whether the appellant is entitled for divorce on the

ground of cruelty as well as desertion?

C. Whether the finding rendered by the Lower

Appellate Court in the judgment will justify the conclusion?

D. Is not finding of the Lower Appellate Court has

been on mere surmise and conjective without any legal

basis?”

6. As far as the 1^st substantial question of law is concerned, it is settled

position of law that the first Appellate Court need not frame specific issues, but

it is enough to answer all the issues that were raised by the Trial Court. In the

present case, the first Appellate Court has framed the issue whether the judgment

and decree of the Trial Court is sustainable or it is liable to be set