Dismissed

Ilayappan, v. Shanmughavadivu

Madras HC10 Mar 2021CMSA/18/2010

Case brief

AI extract

What is this about?

The High Court of Madras dismissed a second appeal arising from a dissolution of marriage petition. Upholding the first appellate court, the bench held that evidence established cruelty and a live-in relationship with another woman, making the marriage irretrievably broken. The appeal against the reversal of the trial court was rejected.

What did the court decide?

The second appeal was dismissed with no costs; the first appellate order confirming dissolution of marriage stands.

Ilayappan, Vs Shanmughavadivu — Matrimonial and Divorce | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 10.03.2021

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CORAM

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THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

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C.M.S.A.No.18 of 2010 and M.P.No.1 of 2010

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Ilayappan S/o.Ganapathy Kattakadu Veppanatham Varagoor Post, Attur Taluk Salem District

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.. Appellant/Respondent/ Respondent Vs.

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Shanmughavadivu D/o.Thiruvak Gounder Teacher Garden Manivizhunthan Colony Attur Taluk Salem District

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.. Respondent/Appellant/ Petitioner

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Civil Miscellaneous Secod Appeal filed under Section 28 of Hindu Marriage Act r/w Section 100 CPC against the judgment and decree dated 14.03.2008 passed in C.M.A.No.18 of 2007 on the file of the Additional District Court, Salem, reversing the judgment and decree dated 27.04.2007 passed in H.M.O.P.No.51 of 2003 on the file of the Subordinate Court, Attur.

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For Petitioner : Mr.C.T.Mohan For Respondent : Mr.U.Chandramohan for Dr.P.Jagadesan

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JUDGMENT

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The judgement and decree dated 14.03.2008 passed in C.M.A.No.18 of 2007 on the file of the Additional District Court, Salem, reversing the judgment and decree dated 27.04.2007 passed in H.M.O.P.No.51 of 2003 on the file of the Subordinate Court, Attur, is under challenge in the present civil miscellaneous second appeal.

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

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The appellant/husband and respondent/wife were the respondent and petitioner, respectively, in H.M.O.P. proceedings. The respondent/wife filed a petition for desolation of marriage under Section 13(1)(1A) of the Hindu Marriage Act, 1955 and the said petition was defended by the appellant/husband. The trial Court adjudicated the issues with reference to the documents and evidences produced by the respective parties and dismissed the H.M.O.P. on the ground that the respondent/wife could not able to establish the cruelty with sufficient evidence.

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Challenging the said judgment, the respondent/wife filed an appeal in C.M.A.No.18 of 2007. The first appellate Court also adjudicated the issues with reference to the documents and evidences and formed an opinion that it is sufficient to arrive a decision that the respondent/wife established the act of cruelty against the appellant/husband and therefore, she is entitled for the relief of desolation of marriage.

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Challenging the said judgment passed by the first appellate Court, the appellant raised the following substantial questions of law in this appeal, which reads as under:

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“A) The learned appellate Court erred in concluding that there is no chance of reunion in spite of several judgment which has laid down that irretrievable break down of marriage is not a ground recognized for granting divorce?

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B) Has not the lower appellate Court grossly erred in failing to decide the case as per the ingredients of the provisions of law regarding marriage and divorce?

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C) Has not the appellate Court erred in basing its judgment on presumption and equity which is bad in law more particularly in matrimonial cases?

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D) Has not the lower appellate Court erred in failing to discuss about the documentary evidence and the credibility of witnesses which has expressed its prejudicial mind?

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E) Has not the lower appellate Court erred in non appreciation and misappreciation of evidence and documents filed in the case?

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F) Has not the lower appellate Court erred in prejudiciously relying upon the birth extract of a child alleged to have been born to the appellant in spite of the judgment that the birth extract could not be sufficient to establish marriage?”

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

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Heard Mr.C.T.Mohan, learned counsel for the appellant/husband and Mr.U.Chandramohan, learned representing counsel for Dr.P.Jagadeesan, learned counsel on record for the respondent/wife.

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Undoubtedly, the questions of law are mostly relatable to the factual matrix of the case at hand. However, the learned counsel appearing on behalf of the appellant/husband reiterated that the first appellate Court has absolutely failed to adjudicate the issues with reference to the documents and evidences and by providing clear findings with reference to the documents. In absence of such clear findings with reference to the documents and evidences, the judgment of the first appellate Court cannot be sustained at all.

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It is contended that the trial Court has elaborately adjudicated the issues and formed an opinion that the respondent/wife could not able to establish the cruelty. While reversing the judgment, the first appellate Court is expected to adjudicate the relied upon documents and make a finding to arrive at a conclusion for the purpose of reversing the judgment.

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The learned counsel for the appellant/husband relied upon the judgment of the Supreme Court in the case of R.S.Anjayya Gupta Vs. Thippaiah Setty¹ , wherein, the Apex Court made a finding that, “the first appellate Court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at a conclusion that appeal is devoid of merit”. The said proposition has not been adopted by the first appellate Court in the present case. Contrarily, the first appellate Court has formed an opinion based on certain factual narrations made by the respondent/wife and therefore, this civil miscellaneous second appeal is liable to be allowed.

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The learned counsel appearing on behalf of the respondent/wife objected the said contention by stating that both the appellant/husband and the respondent/wife are living separately for the past about 25 years. The first appellate Court granted the relief of desolation of marriage on 14.03.2008. However, even before that, the appellant/husband married another woman viz., Sasikala and a female child also born to them on 23.03.2000. The respondent/wife had filed certain documents to establish that the appellant/husband got married to Sasikala and a female child was also born to them and further the appellant/husband has obtained a family card in the

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1 Civil Appeal No. 7418 of 2009 d ecided on 01.07.2019

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

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name of his second wife Sasikala and the voters' list also reveals that both the appellant/husband and his second wife Sasikala were living together. When the marriage became irretrievably broken down and the appellant/husband and the respondent/wife are living separately for more than 25 years and the respondent/wife could able to establish the fact that the appellant was married to another woman and a female child was born to them, whatever opinion expressed by the first appellate Court is correct and thus, the present appeal is liable to be dismissed.

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Admittedly, the marriage between the appellant/husband and respondent/wife was solemnized on 24.11.1993 as per hindu rites and custom. A female child was also born from and out of the wedlock and the respondent/wife filed H.M.O.P.No.51 of 2003 narrating the allegations of cruelty against the appellant/husband. Several allegations raised by the respondent/wife were adjudicated by the trial Court. However, the trial Court formed an opinion that the respondent/wife could not able to file any documents to establish that the second marriage was solemnized between the appellant/husband and Sasikala. Even marriage invitation was not marked as a document and the place of marriage was also not stated and the trial Court has refused to accept the birth certificate of the female child and the voters' list. Further, the trial Court found that when the marriage was not established between the appellant/husband and another women viz., Sasikala, the respondent/wife is not entitled to the relief of desolation of marriage.

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The first appellate Court also adjudicated the said documents elaborately. The first appellate Court made a finding that the appellant/husband has given an electric shock to the respondent/wife and she was subjected to harassment and there was an attempt to kill her. Under those circumstances, the respondent/wife was unable to continue her matrimonial life and filed a petition for desolation of marriage. When there was no attempt of reunion and the spouses were living separately for about 12 years, the first appellate Court formed an opinion that the marriage became irretrievably broken down. The other ground raised by the respondent/wife was also considered by the first appellate Court with reference to the documents. The first appellate Court made a finding that the appellant/husband was living with another woman viz., Sasikala and the said factum was established through documents. Though the first appellate Court has not mentioned the documents in the finding, those documents are in fact filed even before the trial Court and therefore, the contention of the appellant/husband that the first appellate Court has not given finding based on the documents is incorrect. The first appellate Court has arrived at a conclusion that the

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trial Court has not considered those documents, which can be relied upon. Under those circumstances, the judgment of the trial Court was set aside by the first appellate Court.

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This Court has also gone into the documents relating to the second marriage of the appellant/husband with Sasikala and a female child born to them.

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Ex-P2 dated 18.03.1996 is a copy of the letter sent by the respondent/wife to her parents. The said letter reveals that the respondent/wife was subjected to harassment. Ex-P4 dated 23.04.1996 is also a copy of the letter sent by the respondent/wife to her parents, wherein, the respondent elaborately narrated the harassment caused to her by the appellant/husband. Ex-P6 dated 28.04.1996 is the C.S.R. copy issued by the police. It is relevant to consider the document Ex-P13, which is the birth certificate of a female child born to the appellant/husband and Sasikala dated 23.03.2000. A perusal of the said birth certificate reveals that the certificate was issued by the Registrar (Birth and Deaths), Salem City, Salem Municipal Corporation, on 20.04.2000. Accordingly, the female child was born on 23.03.2000 at Sri Gokulam Hospital, Meyanur, Salem, and the name of the father is Ilayappan and the name of the mother is Sasikala. Ex-P16 is the family card dated 07.12.2005. The family card also reveals that the wife of the said Ilayappan is Sasikala. Ex-P17 is the family card A- Register, wherein, the name of the appellant/respondent is entered. Ex-P18 is the voters' list dated 07.12.2005, which reveals that the name of the appellant/husband is found in Serial No.814 and the name of the said Sasikala is found in Serial No.817, wherein, it is stated that her husband name is Ilayappan. Relying on these documents, the first appellate Court arrived at a conclusion that the appellant/husband is living with another woman, though the marriage certificate or marriage invitation has not been marked as documents.

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This Court is of the opinion that the marriage was solemnized or not, the fact remains that the birth certificate of a female child dated 23.03.2000 as well as the family card and the voters' list reveals that the appellant/husband Ilayappan and Sasikala were living together. Even if the marriage was solemnized between Ilayappan and Sasikala, the marriage cannot be treated as a valid marriage, as during the relevant point of time i.e., in the year 2000, the marriage between the appellant/husband and the respondent/wife was not desolated. When the marriage with the respondent/wife was in subsistence, the marriage, if at all solemnized with Sasikala, cannot be considered as a valid marriage. However, the fact remains that a female child was born to the appellant/husband

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and Sasikala. Thus, the finding of the trial Court that the respondent/wife has not filed the marriage invitation or any proof of marriage, became unnecessary and cannot have relevancy as far as the petition for desolation of marriage between the appellant/husband and the respondent/wife is concerned. The very fact that the appellant was living with another woman viz., Sasikala, right from the year 2000 or prior to that and a female child also born and further the appellant/husband and the respondent/wife are separately living for about 25 years, there is no reason to interfere with the findings of the first appellate Court at this length of time and in the interest of both the parties to have a peaceful life, this Court is not inclined to reverse the findings of the first appellate Court, as the findings of the trial Court was rightly reversed.

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Accordingly, the judgment and decree dated 14.03.2008 passed in C.M.A.No.18 of 2007 reversing the judgment and decree dated 27.04.2007 passed in H.M.O.P.No.51 of 2003, stands confirmed. As a sequel, this civil miscellaneous second appeal is dismissed. No costs. Connected M.P. is closed.

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Sd/-

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Assistant Registrar(CO)

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//True copy//

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Sub Assistant Registrar

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nsd

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1.The Additional District Judge, Salem.

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2.The Subordinate Judge, Attur.

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Copy To

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The Section Officer, VR Section, High Court, Madras.

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+1cc to Mr.C.T.Mohan, Advocate SR.No.15924

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+1cc to Mr.U.Chandramohan, Advocate SR.No.15339

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C.M.S.A.No.18 of 2010

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SSD(CO)

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HS(01/09/2021)

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

Ilayappan, v. Shanmughavadivu

Case brief

What is this about?

What did the court decide?

Ilayappan, v. Shanmughavadivu

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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