Dismissed

Shanmugam @ Pounraj v. Kanagam

Madras HC10 Jan 2023CMSA/92/2022

Case brief

AI extract

What is this about?

The High Court dismissed the husband’s appeal against divorce decree. Relying on his admission of bigamy and evidence of separate criminal proceedings for marrying another woman, the court held the wife’s departure was justifiable and her allegations of false divorce filing based on anti-paternity reasons were dismissed due to lack of proof against her.

What did the court decide?

The second appeal filed by the appellant against the judgment and decree dismissing his divorce petition is dismissed.

Shanmugam @ Pounraj Vs Kanagam — Matrimonial and Divorce | Madras HC (2023)

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C.M.S.A.No.92 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on Pronounced on 04.01.2023 .01.2023

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CORAM

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THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN

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C.M.S.A.No.92 of 2022

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Shanmugam @ Pounraj .. Appellant

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Versus

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Kanagam .. Respondent

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Prayer : Civil Miscellaneous Second Appeal filed under Section 13 (i-a & i-b) of the Hindu Marriage Act 1955 r/w. Section 100 of C.P.C. against the judgment and decree dated 09.09.2019 made in C.M.A. No.02 of 2016 on the file of the learned Principal District Judge, Dharmapuri confirming the judgment and decree dated 20.08.2015 made in H.M.O.P. No.67 of 2013 on the file of the Sub Court, Harur.

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For Appellant : Mr.T.Arockiadass for M/s.Dass and Viswa Associates

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JUDGMENT

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The Civil Miscellaneous Second Appeal has been filed against the judgment and decree dated 09.09.2019 made in C.M.A.No.02 of 2016 on the file of the learned Principal District Judge, Dharmapuri confirming the judgment and decree dated 20.08.2015 made in H.M.O.P. No.67 of 2013 on the

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file of the Sub Court, Harur.

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https://www.mhc.tn.gov.in/judis

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C.M.S.A.No.92 of 2022

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The husband is the appellant herein. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant/husband namely Shanmugam @ Pounraj filed a petition for divorce under Section 13 (i-a & i-b) of the Hindu Marriage Act 1955.

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3. As per the pleadings, the marriage between the parties was solemnized on 11.06.2000 at Maniampadi Venkatasami Temple near Kadathur in Dharmapuri District and their marital life was moving smoothly for 10 years and out of their wedlock, two children were born. The petitioner retired from military service on 31.01.2011 and thereafter, he entertained a suspicion upon the act of the respondent wife and the wife is alleged to have left the matrimonial home on 01.06.2011.Therefore, the allegation of cruelty on the part of the respondent wife, the husband has filed the divorce petition on the ground of cruelty and desertion.

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During the trial, it appears that Ex-P1-Family Card, Ex.P2-complaint

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filed by the appellant before the All Women Police Station, Harur and Ex.P3-CSR Copy were marked. On behalf of the respondent, the wife examined

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C.M.S.A.No.92 of 2022

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herself as RW1 and one Mr.Venkatesh was examined as RW2. In both, the counter statement as well as the deposition of the RW1, the respondent wife has specifically pleaded that the petitioner husband had contracted second marriage and had also begotten a child. Further, in order to deprive the pecuniary benefits, the petitioner husband has filed the divorce petition with false allegations.

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It is the specific case of the RW1 and RW2 that the respondent wife has filed a complaint before the above police station and FIR is registered in Cr.No.20/12, under Sections 498(A) & 506(ii) of IPC and the Chargesheet is taken on file in C.C.No.90 of 2012, on the file of the learned Judicial Magistrate, Pappireddipatti, which is pending for the alleged offence of Section 494 of IPC for committing bigamy. When the specific question was put to him in the cross examination, the PW1/Husband has categorically admitted that in his Family card, the name of Poongavanam is included as wife and the same assumes significance. Furthermore, in the cross examination, it is specific answer by the respondent wife as follows:

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“vd; fzth; 2k; jpUkzk; bra;Jbfhz;lhh;/ me;j kidtpiatpl;L tpl;L te;jhy; ehd; mtUld; nrh;e;J thH jahuhf

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C.M.S.A.No.92 of 2022

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,Uf;fpnwd;/ vd; fzth; kPJ 2k; jpUkzk; bra;Jbfhz;ljpd; rk;ke;jkhf ghg;gpblul;ogl;o ePjpkd;wj;jpy; vd; fdtUld; nrh;e;J thH brhd;dnghJ mth; 2k; kidtpia tpl;L tpl;L te;jhy; nrh;e;J thH;tjhfj;jhd; brhd;ndd;/”

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In view of the admission of PW1 in the cross examination that he is

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charged in a Criminal Case in C.C.No. 90 of 2012 for the act of bigamy, the inclusion of the name of the second wife namely Poongavanam in the family card of the petitioner husband and it is also the specific case of the respondent wife that a Criminal Case is pending before the learned Judicial Magistrate, Pappireddipatti, against the petitioner husband for the act of bigamy and had begotten a son through his second wife and the RW1's deposition that she is willing to stay with the petitioner husband, if he leaves the second wife.

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The Courts below appreciated the evidences of RW1 with prosper perspective and held that it is only the act of petitioner husband that during the subsistence of the respondent wife namely Kangam, the petitioner had contracted second marriage with the said Poongavanam. The respondent wife had left the matrimonial home and she cannot be expected to live with the second wife of the petitioner and reasons deposed by the RW1 in the cross examination as extracted supra discloses that for justifiable reasons she is living

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C.M.S.A.No.92 of 2022

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with her parents.

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With regard to the absence of positive evidences regarding the alleged cruelty said to have been committed by the respondent wife, both the Courts below has rightly not entertained the said plea by holding that the preponderance in favour of the existence of the facts alleged is not established.

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In view of the discussion in the preceding paragraph, the respondent wife has left the matrimonial home with a justifiable reasons as recorded in the cross examination that the husband had contracted second marriage that too during the subsistence of the marriage of the first respondent herein. Furthermore, she has not committed any alleged cruelty as pleaded by the PW1 as the same is not proved in the manner known to law.

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Hence, the concurrent findings rendered by both the Courts below is based upon the admission of the PW1 as well as the evidence of RW1. Therefore, both the Courts below have rightly appreciated the evidences of both the parties and rightly refused to entertain the divorce petition.

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C.M.S.A.No.92 of 2022

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Summing up, I do not find any merits in this Civil Miscellaneous Second Appeal and the same is liable to be dismissed at the admission stage itself. No costs.

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.01.2023

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Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order dhk

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1. The Principal District Judge, Dharmapuri

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2. The Sub Court Harur.

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C.M.S.A.No.92 of 2022

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RMT.TEEKAA RAMAN.J,

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dhk

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Pre-delivery Judgment made in C.M.S.A.No.92 of 2022

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.01.2023

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Shanmugam @ Pounraj v. Kanagam

Case brief

What is this about?

What did the court decide?

Shanmugam @ Pounraj v. Kanagam

Case brief

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