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2025 Supreme(Online)(Mad) 56785
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.V. Thamilselvi, J
Selvaganesan @ Madhavan – Appellant
Versus
Subalakshmi – Respondent
CMSA No. 52 of 2024 | CMP NO. 17632 OF 2024
For the Appellants/Petitioners: Mr.H.Manojin
For the Respondents: Mr.R.Shivakumar, For M/s. K.M. Vijayan Associates
A marriage can be dissolved on substantial grounds despite procedural errors if irretrievable breakdown is established.
Headnote:(A) Hindu Marriage Act - Section 13(1)(b) - Divorce - A husband filed for divorce on grounds of desertion after a marriage that had not been consummated, claimed separation within 15 days, resulting in judgment reversal by the appellate court due to technicalities - Court finds marriage irretrievably broken down and grants divorce despite procedural errors - Maintenance default and enhancement awarded as per court's direction. (Paras 2, 4, 6, and 8)
(B) Technical Grounds - The court emphasizes that the approach should prioritize substantive justice over technical inaccuracies given the irretrievable breakdown of the marriage. (Paras 5 and 6)
Facts of the case:
The husband and wife separated within 15 days of marriage, with allegations of desertion by the wife. The husband initially sought divorce claiming cruelty but incorrectly cited desertion as grounds, leading to appeals regarding procedural validity.
Findings of Court:
The marriage was determined to be irretrievably broken, justifying a divorce decree despite procedural missteps.
Issues: The core issue was the validity of divorce grounds based on procedural misalignment in divorce petition filings.
Ratio Decidendi: The judgment underscores that marital breakdown substantiates divorce irrespective of procedural misclassifications, enabling the court to grant the relief sought.
Result: Civil Miscellaneous Appeal allowed.
| Table of Content |
|---|
| 1. grounds for divorce established despite procedural errors. (Para 1) |
| 2. emphasis on maintenance provision and its enhancement. (Para 2) |
| 3. focus on irretrievable breakdown over technical missteps. (Para 4 , 6) |
CMSA No. 52 of 2024 PRAYER To allow the above Civil Miscellaneous Second Appeal and set aside the Decree and Judgment dated 30.10.2023 made in CMA No.1 of 2022 by the Honble District Judge, Myladuthurai in reversing the Decree and Judgment dated 27.10.2021 made in HMOP 233 of 2020 filed by the Respondent wife for restitution of Conjugal Rights on the file of the Honble Sub Court, Myladuthurai.
For Appellant(s): Mr.H.Manojin For Respondent(s): Mr.R.Shivakumar For M/s. K.M.
Vijayan Associates
JUDGEMENT
This civil miscellaneous appeal has been filed to set aside the Decree and Judgment dated 30.10.2023 made in CMA No.1 of 2022 by the District Judge, Myladuthurai in reversing the Decree and Judgment dated 27.10.2021 made in HMOP 233 of 2020 filed by the Respondent wife for restitution of Conjugal Rights.
2. For the sake of convenience appellant and respondent is referred as husband and wife.
3. The husband filed HMOP No. 233 of 2020 on the file of the Sub Court, Myladuthurai, for divorce on the ground of desertion, the wife contested the case. On hearing both sides, the learned judge granted divorce stating that the wife deserted the husband for more than 8 years. Challenging the judgement passed by the Sub Judge, Mayiladuthurai, wife filed an appeal before the District Judge, Myladuthurai, in CMA No. 1 of 20222, wherein the first appellate judge held that as per section Section 13 (1)(b ) of Hindu Marriage Act , the marriage be dissolved by a decree on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. But, the husband filed the petition without completing two years from the date of marriage and also though the husband seeking divorce under the ground of cruelty in his petition, but he filed the petition under section 13(1)(a) of , under the ground of desertion. Therefore, for the above reasons, the first appellate judge set aside the judgement passed by the sub Judge, Myladuthurai.
4. Both the husband and wife appeared before this Court along with their respective counsels. The fact reveals that on 04.09.202013 marriage was solemnized and within a 15 days from the date of marriage both were got separated. Thereafter, husband filed petition for divorce before the sub Court Myladuthurai under Section 13 (1)(b) of Hindu Marriage Act , under desertion.
According to the husband, after marriage she left with her brother and thereafter the panchayat was held between the family member but she was not inclined to live with the husband and also marriage was not consummated and also matter was not compromised. Further, she filed petition for restitution of conjugal rights in HMOP NO. 198 of 2016, on the file of the same Court but the same was dismissed. Against which she filed appeal and the same was allowed. 5. Challenging the judgement passed by the first appellate Court, husband filed this appeal.
6. The fact reveals that within 13 days from the date of marriage they got separated. Admittedly, there is no child the marriage, therefore the marriage was not consummated and also there is no proof produced that the marriage was consummated. As on date, the marriage was not consummated and for more than 15 years they live separately, therefore the marriage between the husband and wife is strained. However, this Court enquired both the husband and wife. Though the wife willing for reunion, the husband not inclined for reunion stating that harassment made by the family members of the wife, he does not want to live with her. As there is no possibility for reunion, therefore, the marriage between the parties is irretrievably broken down. Though the trial judge has allowed the petition, the first appellate judge allo
