Dismissed

Suresh v. Neela W/O Suresh

Madras HC9 Feb 2021CMSA/30/2018

Case brief

AI extract

What is this about?

In civil miscellaneous second appeal under Hindu Marriage Act and CPC, the Madras High Court dismissed the appeal. The Court held that the appellant failed to establish a case for divorce, finding no infirmity or perversity in lower courts accepting the petitioner's admission of extramarital life. It ruled that facts adjudicated in lower courts could not be re-adjudicated in second appeal absent a

What did the court decide?

Confirmed the judgment and decree of the Lower Appellate Court dismissing the petition for divorce; dismissed the civil miscellaneous second appeal.

Suresh Vs Neela W/O Suresh — Matrimonial and Divorce | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.02.2021

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CORAM

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THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

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C.M.S.A.No.30 of 2018

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Suresh ...Appellant/ Appellant/ Petitioner Vs.

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Neela ... Respondent/ Respondent/ Respondent

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Prayer: Civil Miscellaneous Second Appeal filed under Section 13(1) (1-a) of Hindu Marriage Act r/w. Section 100 of C.P.C., against the judgment and decree dated 11.01.2018 passed in C.M.A.No.1 of 2013 on the file of the District Judge, Nagapattinam, confirming the judgment and decree dated 17.11.2012 passed in H.M.O.P.No.48 of 2009 on the file of the Subordinate Judge, Nagapattinam.

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For Respondent : Ms.H.Kavitha for Mr.S.Sounthar

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J U D G M E N T

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The judgment and decree dated 11.01.2018 passed in C.M.A.No.1 of 2013, confirming the judgment and decree dated 17.11.2012 passed in H.M.O.P.No.48 of 2009, is under challenge in the present civil miscellaneous second appeal.

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The substantial questions of law raised in the appeal on hand reads as under:

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a. Whether the finding of lower Appellate Court is correct in dismissing the petition for divorce that the petitioner having lived in extra marital life as alleged by the respondent is not entitled for divorce from the respondent when she did not file any petition for restitution of conjugal right under the provisions of Hindu Marriage Act?

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b. Whether the reasons of the lower Appellate Court in dismissing the appeal that the petitioner has himself admitted in para 4 of his petition that he had lived with another woman, kalaiselvi outside of marital house is correct?

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

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c. Whether the Courts below are correct in dismissing the petition for divorce without seeing the possibility of reunion of the petitioner with respondent after having lived separately for more than 9 years which would be preponderance probability of irretrievable break down of marriage between the petitioner and the respondent?

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d. Whether the Courts below are correct in dismissing the petition for divorce on the presumption that the petitioner has lived extra marital life with another woman kalaiselvi only on the pleading of counter statement of the respondent which is not corroborated by any other witnesses?

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Perusal of the above questions of law raised, reveals that the said questions may not be construed as a substantial questions of law as mostly relatable to the facts and circumstances which were elaborately adjudicated both by the Trial Court and the first Appellate Court. The facts adjudicated elaborately cannot be re-adjudicated in the second appeal in the absence of any substantial question of law with reference to Section 100 of C.P.C.

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The facts in nutshell reveals that the appellant husband filed a petition under the Hindu Marriage Act for dissolution of marriage. The marriage between the appellant and respondent was solemnized on 20.10.1997 as per Hindu Rites and Customs. On account of misunderstanding, the parties raised allegations at each other which resulted in filing of the petition for dissolution of marriage by the husband. The case was contested before the Trial Court and the Trial Court adjudicated the issues with reference to the documents and evidences produced by the parties. The Trial Court in its considered judgment, made a finding in paragraph Nos.11 & 12 which reads as under:

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“11. The petitioner has also admitted that on many occasions the Trade Union President Mr.Kuppusamy has taken steps to compromise the petitioner and the respondent when they quarreled with each other. The petitioner has also affirmatively stated that the respondent and the mother of the petitioner are residing in the same house along with the children of the petitioner. He has stated as follows:

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"jw;nghJ vjph;kDjhunuhLjhd; vd; mk;kh xnu tPl;oy; ,Uf;fpwhh; vd;W brhd;dhy; Mkhk;/ Mdhy; vd; mk;kh me;j tPl;od; bfhy;iy g [wj;jpy; jdpahf ,Uf;fpwhh;. "

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PW.2 has also admitted the same fact during her https://hcservices.ecourts.gov.in/hcservices/ cross examination. The conduct of the petitioner

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has played a vital role in deciding the petition. He himself has admitted that he is residing in a separate house without mentioning his present address and he has also admitted that he had voluntarily left the matrimonial home. The petitioner himself has admitted during his cross examination that he is residing separately from his family for the past more than two years and he has not seen his children also. He has narrated the same in his evidence as follows:

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" ehd; FHe;ijfis filrpahf ghh;j;J 2 tUl';fSf;F nkyhfpwJ/ vd; igad;fs; gof;Fk; tptuk; bjhpa[k;/ vd; FHe;ijfSf;F ehd; Jzpkzp vLj;Jf; bfhLf;ftpy;iy/ gog;g[ brytpw;Fk; gzk; bfhLf;ftpy;iy vd;W brhd;dhy; rhl;rp FHe;ijfs; muR gs;spapy; gog;gjhy; mjpfk; bryt[ ,y;iy vd;W TWfpwhh;/ "

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The petitioner being à father of three children , he has no interest in seeing his children for more than two years. How a dutiful father could live without seeing his children for more than two years has not at all been explained by the petitioner. When the petitioner has reluctant to see his young children for more than two years and has not taken due care and caution for their studies and their day to day life, that would show the stone heart of the petitioner. The above evidence would clearly shows that the petitioner is not having any interest in looking after his family especially his children and the same would probablise the case of the respondent. It is unbelievable to accept the evidence of petitioner as well as his mother that the respondent has assaulted the petitioner as well as his mother and had caused fracture on the left hand of the petitioner's mother, since no documentary evidence has been produced to prove the same and since the mother of the petitioner is all along the way living with the petitioner and her children in the same house. It is also unbelievable one that the mother of the petitioner as well as her mother are residing in the bathroom situated in the backyard of the house The respondent has clarified the same by stating that the mother of the petitioner and his grandmother are residing in the house situated in the backyard which was previously rented out to somebody.

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When the petitioner himself has admitted that he is having illicit intimacy with another woman during the subsistence of his marriage with the respondent even after having three grown up children, no dutiful wife would have tolerated the https://hcservices.ecourts.gov.in/hcservices/ high handed, unlawful, un-tolerable and sadist act

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of the petitioner. Mere bald allegation made against the respondent would not itself sufficient to prove the case of the petitioner. On the other hand the respondent has proved her case on the basis of the admission given by the petitioner and probablise her case through other evidence of PW.I and PW.2. Considering the above stated circumstances this court finds that the petitioner has miserably failed to prove his case and consequently this petition is to be dismissed and this court decided the point accordingly.”

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The above findings of the Trial Court reveals that the appellant husband could not able to establish the allegations set out in his petition seeking dissolution of marriage. Challenging the Trial Court's judgment, the appellant preferred C.M.A.No.1 of 2013. The first Appellate Court also considered the documents and evidences as well as the findings of the Trial Court. In paragraph No.10 of the judgment, the first Appellate Court made a finding which is extracted hereunder:

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“10. cz;ikapnyna vjph;kDjhuh;- kidtp kDjhuiuf; bfhLikg; gLj;jpapUe;jhy; mth;fs; ,UtUf;Fk; K:d;W FHe;ijfs; gpwe;jpUf;Fkh vd;gJ nfs;tpf;Fwp/ K:d;W FHe;ijfs; gpwe;Js;sepiyapy; kDjhuh; ntW bgz; kPJ nkhfk; bfhz;L kidtpia Fiw Twtij Vw;f KoahJ/ tHf;fpw;fhf vjph;kDjhuh; jd;idf; bfhLikg;gLj;jpajhf kDjhuh; Twp tUfpwhh;/ vdnt. ,e;j re;jh;g;g NH;epiyfis ehfg;gl;odk; rhh;g[ ePjpgjp mth;fs; jd;Dila cj;jutpy; M';fh';nf nkw;nfhs;fs; fhl;o ed;F ghprPyid bra;J kDjhuhpd; tpthfuj;J nfhUk; kDitj; js;Sgo bra;Js;shh;/ rhh;g [ ePjpgjp mth;fs; gpwg;gpj;j me;j cj;jutpy; rl;lg;gpiHnah my;yJ fUj;Jg; gpiHnah VJk; ,Ug;gjhf vdf;Fj; bjhpatpy;iy/ vdnt me;j cj;jutpy; jiyaPL bra;a tpUk;gtpy;iy/ khwhf. ehfg;gl;odk; rhh;g [ ePjpgjp mth;fs; gpwg;gpj;j cj;juit cWjp bra;J cj;jutpLtJ ePjpapd; eyDf;F cfe;jjhf ,Uf;Fk; vd;W ehd; fUJfpnwd;/ me;j tifapy; ,e;j chpikapay; gy;tif nky;KiwaPL js;Sgo bra;ag;gl ntz;oaJ vd;Wk; Kot[ bra;fpnwd;/” ”

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Perusal of the above findings of both the Trial Court as well as the first Appellate Court, this Court is of the considered opinion that it is the appellant who is responsible for irretrievable break down of the marriage and the allegations set out in the petition are not established by the appellant. Contrarily, the appellant husband made an attempt to shift the burden on the wife which is undoubtedly impermissible. The person approaching the Court of law must establish his case at the first instance. This being the basic https://hcservices.ecourts.gov.in/hcservices/ principle, the appellant husband has not established his case

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even before the Trial Court and the findings of the Trial Court as well as the first Appellate Court are candid and convincing, this Court finds no infirmity or perversity as such. This apart, the substantial question of law as raised in the present appeal on hand is unacceptable and cannot be construed as a valid question of law and deserves no further adjudication.

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Thus, the judgment and decree dated 11.01.2018 in C.M.A.No.1 of 2013, confirming the judgment and decree dated 17.11.2012 passed in H.M.O.P.No.48 of 2009 stands confirmed and C.M.S.A.No.30 of 2018 stands dismissed. No costs.

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Sd/Assistant Registrar(CS VII)

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//True Copy//

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Sub Assistant Registrar

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gsk

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1.The District Judge, Nagapattinam.

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2.The Subordinate Judge, Nagapattinam.

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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.R.Kannan, Advocate SR.No. 7255

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+1cc to Mr.S.Sounthar, Advocate SR.No. 7482

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C.M.S.A.No.30 of 2018

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nrjk(CO) A.SK(22.09.2021)

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

Suresh v. Neela W/O Suresh

Case brief

What is this about?

What did the court decide?

Suresh v. Neela W/O Suresh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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