The High Court dismissed an appeal challenging the dismissal of a divorce petition filed by the husband. The trial court found no sufficient evidence to prove cruelty or desertion as alleged by the husband, noting his abandonment could not be termed valid desertion in the absence of such proof.
Civil Miscellaneous Appeal dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.A.No.790 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2024
CORAM :
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
C.M.A.No.790 of 2021 and D.O.P.No.161 of 2015
R.Rajendran
... Appellant
Vs.
P.Gunaselvi
... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of the Divorce Act, 1869, to call for the records on the file of the Principal District Judge, Villupuram and set aside the Decretal order and judgement passed on 03.12.2020 in D.O.P.NO. 161 of 2015 and allow this appeal.
For Appellant : Mr. P.Kavitha Balakrishnan
For Respondent : Mr.K.Arunagiri
JUDGMENT
The appeal is filed by the husband aggrieved over the dismissal of his
petition to dissolve the marriage with the respondent taken place on 13.09.1999 at Thuya Poulin Church, Kazhugumalai, Tuticorin. The ground on which he has sought for dissolution of his marriage is “Desertion and
cruelty”
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litigative status before the Tribunal below.
3.1 The petitioner and respondent married on 13.09.1999 and after
setting up of matrimonial home at Vikaravandi, they have blessed with the male child namely Raghulji. Both are teachers. Beginning of the year 2000, they purchased four housing plots from their earnings. They decided to construct a house in one of the housing plots purchased at Vikaravandi. Accordingly in the month of February 2009, they have completed the building construction work and they were started residing in the constructed house. The respondent's brother namely Paulraj who was residing in Chengalpattu used to visit the house of the petitioner and stayed there during the weekends.
3.2. On 30.08.2015, the brother of the respondent Paulraj along
with other persons trespassed into the house of the petitioner and threatened him with dire consequences and also attempted to murder him. This was aggravated the already disturbed relationship between the petitioner and the
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respondent. Subsequently fearing of threat to his life, the petitioner has no other option except to file divorce petition and accordingly sent legal notice
dated 04.09.2014 demanding divorce. Notice was also received and replied by the respondent/wife denying all the allegations and refusing to accept the demand. Thereafter, the petitioner is constrained to file petition for dissolution of marriage.
order dated 03.12.2020 in D.O.P.No.161 of 2015 has dismissed the petition on the ground that the petitioner has failed to prove the cruelty against him.
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Aggrieved over the order passed therein, this appeal has been filed by the appellant/husband.
that there is no evidence produced to show that wife has committed cruelty
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on her husband. The truth is that husband is the guilty of the desertion and he is trying to take advantage of its own fault claiming that there was separation for more than six years. Hence, the claim made by the petitioner/husband has to be dismissed.
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that she was employed much earlier to the petitioner/husband. Naturally she would have earned more income than her husband. But there must be some evidence to show that this has resulted in quarrel or caused any insult to the petitioner/husband.
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heavily on the petitioner to prove his case to the extent of preponderance of probability. In this case, after adducing his oral evidence and husband's failure to cross examine the wife with regard to the counter allegations made by her, shows that the husband has not disputed the answers given by the wife for his allegation and it is also deemed to be an admission of the husband regarding allegation made against husband. In such circumstance, this Court is of the view the Trial Court has rightly concluded that there is no evidence on record to show the cruelty or desertion against his wife.
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petition and this Court finds no reason to interfere with the impugned order.
It is also contended by the learned counsel for the appellant/husband that the marriage irretrievably broken down from the year 2009 onwards and she relied on the judgment passed by the Apex Court in the case of N.Rajendran Vs. S.Valli reported in 2022 (1) RCR (Civil) 847, Wherein the Apex Court has invoked Powers under Article 142 of Constitution of India for dissolution of marriage. The above judgement of the Apex Court is not applicable to the case of the petitioner herein and Apex Court has exercised power under Article 142 of Constitution of India, to dissolve the marriage therein.
costs.
23.02.2024
nsl Index:Yes/No Speaking Order : Yes/No Neutral Citation Case : Yes/No
To
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K.RAJASEKAR.J nsl
C.M.A.No.790 of 2021
23.02.2024
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2 issues framed by the court
Whether the appellant has discharged the burden of proving desertion and cruelty sufficient to dissolve the marriage.
Whether the appellant's voluntary abandonment of the matrimonial home constitutes valid desertion based on cruelty.
Colour shows how this judgement treated each authority
Henry Johnson Vs. M. Grena JanetReferred¶48
Henry Johnson Vs. M. Grena Janet reported in MANU/TN/3598/2018
N.Rajendran Vs. S.ValliDistinguished¶67
N.Rajendran Vs. S.Valli reported in 2022 (1) RCR (Civil) 847
1 provisions across 1 enactments
R.Rajendran
P.Gunaselvi
K.RAJASEKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
