V. Viyagappan Vs a. Amulrani

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 24.02.2021

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CORAM

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

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C.M.A.No. 2601 of 2016

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V.Viyagappan ..Appellant / Petitioner

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Vs

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A.Amulrani..Respondent / Respondent

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Prayer : Appeal filed under Section 55 of the Indian Divorce Act,
1869, against the fair and final order dated 29.07.2016 made in
I.D.O.P.No. 136 of 2015 on the file of the Principal District
Court, Tiruppur.

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JUDGMENT

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The fair and decreetal order dated 29.07.2016 made in
I.D.O.P.No. 136 of 2015 is under challenge in the present civil
miscellaneous appeal.

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2. The appellant filed a petition under Section 10 of the
Indian Divorce Act, 1869, seeking dissolution of marriage. The
marriage between the appellant and the respondent was solemnized
on 12.09.2011 as per the Christian rites and customs.

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3. Learned counsel for the appellant states that they
have not been continuing in the matrimonial home for about two
months. During the short span of period, the difference of
opinion arose mainly on the ground that the respondent/wife was a

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https://hcservices.ecourts.gov.in/hcservices/

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married woman and by suppressing the fact, she married the
appellant. Apart from this, the appellant contended other
allegations regarding adultery and desertion. It is pertinent to
note that the respondent attended the counselling programme
before the trial Court and thereafter not contested the case. The
trial Court made a finding that the respondent had not appeared
before the trial Court nor contested the case by filing documents
or adducing evidence. Thus, the trial Court passed an exparte
order rejecting the petition filed by the appellant for
dissolution of marriage.

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4. Learned counsel for the appellant further states that
the trial Court has not given an opportunity to the appellant to
establish his case. This apart, the contention of the appellant
set out in the petitions were not defended by the respondent.
Thus, declining the relief is not in consonance with the
principles and, therefore, the order passed by the trial Court is
to be set aside.

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5. This Court is of the considered opinion that
admittedly, the marriage became irretrievably broken down. The
parties are not living together for more than nine years. The
ground of desertion was taken by the appellant before the trial
Court. However, the petition filed by the appellant was not
defended by the respondent and even after service of notice, the
respondent has not appeared either before the trial Court or
before this Court when the present appeal is taken up for
hearing.

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6. Thus, this Court is of the considered opinion that
remanding the matter back would not serve the purpose and the
litigation may be prolonged. As far as the merits of the case are
concerned, this Court cannot adjudicate the allegations regarding
cruelty in the absence of any examination of witnesses. As far as
the ground of desertion is concerned, it is an admitted fact that
the parties are living separately for about nine years.
Therefore, this Court can rely on the ground of desertion based
on the fact that the appellant and the respondent are not living
together for about nine years. Thus, the ground of desertion for
more than two years as contemplated under Section 10 of the Act
is existing as of now and based on the said desertion, the
appellant is entitled for decree of divorce.

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7. Accordingly, the fair and decreetal order dated
29.07.2016 passed in I.D.O.P.No. 136 of 2015 is set aside and the
civil miscellaneous appeal stands allowed. No costs.

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 Assistant Registrar(CS-IV)

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//True Copy//

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 Sub Assistant Registrar

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ssm

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To

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The Principal District Judge,
Tiruppur.

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+1cc to Mr.D.R.Arunkumar, Advocate, S.R.No.11252

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C.M.A.No. 2601 of 2016

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SSD(CO)

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SB(03/09/2021)

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https://hcservices.ecourts.gov.in/hcservices/

V. Viyagappan v. a. Amulrani

Case brief

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V. Viyagappan v. a. Amulrani

Case brief

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