CMSA(MD).No.23 of 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON

: 27.04.2021

PRONOUNCED ON

: 07.06.2021

CORAM:

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

CMSA(MD).No.23 of 2010

(Through Video Conferencing)

R.Suresh

Appellant/Appellnant/Petitioner

Vs

Rajeswari

Respondent/Respondent/Respondent

Prayer:- This Civil Miscellaneous Second Appeal has been filed,

under Section 28 of the Hindu Marriage Act read with Section 100 of

CPC, against the judgement and decree, dated, 15.12.2009, passed in

CMA.No.26 of 2009, by the Principal District Judge, Trichy,

confirming the judgement and decree, dated, 23.10.2008, passed in

HMOP.No.3 of 1997, by the Principal Sub Judge , Trichy.

For Appellant

: Mr.M.Siddharthan

For Respondent

: Mr.G.Sankara Narayanan

ORDER

1.This Civil Miscellaneous Second Appeal has been filed, against the

judgement and decree, dated, 15.12.2009, passed in CMA.No.26 of

2009, by the Principal District Judge, Trichy, confirming the

judgement and decree, dated, 23.10.2008, passed in HMOP.No.3 of

1997, by the Principal Sub Judge, Trichy.

2.The case of the Appellant as set out in the HMOP is that the

Respondent herein is his wife and their marriage took place on

28.08.1987 according to Hindu Rites and Customs and out of the

wedlock, a female child was born to them in February 1991 and she

often used to go to her mother's place and stay there for a long

time and she did not behave as a dutiful and affectionate wife.

Even when he was bedridden due to a road accident on 16.8.1989,

she did not come to see him. On 26.5.1993, the Respondent without

the knowledge of the Appellant, she left the matrimonial home with

the child, with jewels and other belongings. The attempts of the

Appellant to bring the Respondent back to the matrimonial home

ended in vein. On 07.11.1996, the Respondent gave a false

complaint against the him and the Police treated him

disrespectfully. Thus, the Respondent deserted the Appellant and

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CMSA(MD).No.23 of 2010

caused mental cruelty to him. Hence, the HMOP has been filed, for

dissolution of the marriage.

3.The case of the Respondent, as set out in the counter filed in the

HMOP is that the Petitioner did not take care of her and the child

and he was having illicit intimacy with one Kala and they begot a

child on 21.10.1993 and only on coming to know about the same, she

gave the complaint and the said Kala also gave a statement and

that the Respondent apprehending danger to her life, she has been

living separately and she did not desert the Petitioner, but she

was driven out of the home by the Appellant and prayed for

dismissal of the HMOP.

4.Before the Trial Court, on the side of the wife, Ex.P1 to Ex.P7

were marked and PW.1 to PW.3 were examined and on the side of the

husband, he examined himself as PW.1. After analysing the

evidence both oral and documentary, the Trial Court had dismissed

the HMOP and the appeal filed as against the same, was also

dismissed, dismissing the HMOP. Hence, this Civil Miscellaneous

Second Appeal has been filed by the husband.

5.This Civil Miscellaneous Second Appeal was admitted, on the

following substantial questions of law:-

(a)Whether the courts below are correct in holding that there is

no cruelty and desertion on the part of the Respondent?

(b)Whether the first appellate court is correct in dismissing the

appeal when it categorically disbelieved the oral as well

documentary evidence of the Respondent?

(c)Whether the courts below are correct in holding that the

irretrievable break down of marriage is not a ground for

divorce?

6.The learned counsel for the Appellant has submitted that the

courts below erred in appreciating the fact that there is no scope

for reunion between the spouses, since they were living separately

from 1993 and when the Respondent has wi