T. Narayanasamy vs N. Kaleeswari

S. Palanivelu, J.—This Civil Miscellaneous Second Appeal has been filed to to set aside the judgement and decree made in

H.M.C.M.A.No.5 of 2002, dated 23.02.2004, on the file of the learned District judge, Sivagangai, confirming the judgment and decree made in

H.M.O.P.No.31 of 2000, dated 28.03.2002, on the file of the Subordinate Judge, Devakkottai. In the Petition filed by the appellant, u/s 13(1)(i-

a) of the Hindu Marriage Act, 1955, the following are stated:

(i) The marriage between the petitioner and the respondent was celebrated on 01.11.1981 in Arulmighu Shanmuganathar Thirrukkoil, Kundrakudi

Taluk, according to Hindu rites and customs. Both of them were leading a happy married life for three years and thereafter, the respondent used to

abuse this petitioner, his parents and sisters and was subjecting this petitioner to mental agony. On 07.08.84, she left the matrimonial home with her

brother Kaleeswaran, without any reasonable cause. Inspite of this petitioner''s repeated requests to her through some persons, she refused to

come and live with him. She also taken away the jewels offered by her parents at the time of marriage.

(ii) They have no issues. The respondent did not participate in any of the functions or ceremonies held in his house. On 10.07.2000, she lodged a

complaint with the All Women Police Station, Ramanathapuram, stating that he demanded Rs.25,000/- in cash and 15 sovereigns of gold jewels.

This respondent appeared before the Police and after enquiry, since, it transpired that the allegations were wrong, the police did not take any

further steps. She has created disgrace for the petitioner among his co-workers. Further, in order to put him behind the bars, she took steps. This

would show that she is not willing to live with him. Hence, on the grounds of cruelty and desertion, the decree of dissolution of marriage may be

granted.

In the counter filed by the respondent, the following are stated:

It is not true that both of them live only for three years. But they had been living for 5 1/2 years. At that time, he demanded 15 sovereigns of gold

jewels and Rs.25,000/- in cash and perpetrated cruelty upon her. However, she was bearing the same. He also says that this respondent is not

charming and hence, he is going to contract a second marriage. He also drove her from the nuptial home.

(ii) Before the marriage, the father of the respondent died. One year after the marriage, her mother also died. Hence, the respondent could not fulfil

the demands of her husband. Her brothers also told that they are not affluent enough and they could not pay the amount nor could they give jewels.

Her brother one Venkatachalam requested the petitioner to live with her, but, he refused the same by saying that he has to be given the jewels and

cash as demanded by him. He also stated that before marriage 25 sovereigns of gold jewels were offered. Thiruvadanai Chellam Pillai,

Ramakrishnan and D.Ramasamy Pillai of Sithakkur convened a Panchayat, in which, he stated that the respondent is suffering from some

complications in her horoscope and hence, he would not live with her.

(iii) The jewels given to this respondent and other articles and the jewels given to him as well are with him. It is false to state that on 07.08.84, she

leave the matrimonial home she was not informed about the death of the petitioner''s father. When she went to their house on the next day. she was

driven away from the house. This respondent is always ready and willing to live with the petitioner and she was on the fond hope that he would

come and live with her. The police directed her to seek remedy before the Civil Court Hence, the Petition may be dismissed.

The learned Sub-ordinate Judge. Devakkottai, after analysing the evidence and materials on record, declined to grant divorce by observing that

the grounds raised in the petition were not proved. This appellant carried the matter in appeal in H.M.C.M.A.No.5 of 2002, before the District

Court, Sivagangai and the learned District Judge dismissed the appeal refusing to grant decree of divorce. Hence, this appellant is before this

Court.

The learned counsel for the appellant Mr. VR. Shanmuganathan, would submit that a careful perusal of the oral evidence and records would

show that the appellant has taken sincere efforts to have reunion between them, but, in vain and that there is no convincing evidence to show that

panchayat was convened to get their difference patched up and that for over 25 years both the parties have been living separately and there is no

possibility for reunion and hence, a decree of divorce may be granted as per the decisions of the Supreme Court on the ground of irretrievable

break down of marriage.

This Court has consciously gone through the evidence on record. Even though, the respondent lodged a complaint with the All Women Police

Station, stating that her husband was demanding a sum of Rs.25,000/- in cash and 15 sovereigns of gold jewels, the police enquired and directed

both the parties to seek remedy before the Civil Court. It is evidenced that since his mother was also impleaded in the complaint, she was

subjected to much cruelty and due to that her health condition has got deteriorated. He also says that by means of lodging of a complaint, cruelty

was perpetrated upon him. Even though, the appellant shows some materials before the police for the return of jewels to the respondent, she stated

before the police that it was obtained by threatening. Whatever may be, she was having some documents showing the receipt of jewels from him.

Though she stated that it was obtained by threatening her, no material evidence was adduced before this Court in this regard. It is the version of the

respondent that she was not informed about the auspicious and inauspicious events held in the house of her husband and hence, she could not

participate in that events. In the cross-examination, he has stated that on many occasions she accepted before the mediators that she was not going

to live with him. Thereafter, in the mediations which have been held subsequently, she accepted to live with him. However, she did not turn up.

As far as the oral evidence of the respondent is concerned, it is her evidence that since, she does not look nice, she was driven away from her

house and demanded of Rs.25.000/-in cash and 15 sovereigns of gold jewels. Even though, both parties pleaded that Panchayats were held no

mediator has been brought before this Court. It is in evidence that she is aged 48 years and the appellant is aged 52 years, at the time of recording

the oral evidence in the year 2002.

The courts below have recorded concurrent factual findings to the effect that the grounds assigned in the petition have not been established. But,

the fact remains that there is no possibility for reunion. Neither of the parties has filed any application for restitution of conjugal rights. Presently, the

parties may be 59 and 55 years respectively and after 1984. even though they expressed their opinion for living together, in fact, both of them are

living separately and, apparently, there is no intention of having the nuptial life restored.

In this context, the learned counsel for the appellant placed reliance upon various decisions of the Honourable Supreme Court right from the

year 1995, wherein, the Supreme Court has consistently taken a view that if any circumstance leading to irretrievable break down of marriage is

found, then there is no wrong in granting a decree for divorce. In a decision in Naveen Kohli Vs. Neelu Kohli, the Full Bench of the Apex Court

has dealt with the circumstances, where, the impossibility of reunion could be inferred and in those circumstances, whether the court can come to a

conclusion and pass a decree for divorce on the ground of irretrievable break down of marriage. The operative portions of the judgement in

Paragraphs 76,77,78 and 89 are as follows:

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for

the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long

period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though

supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant

regard for the feelings and emotions of the parties.

Public interest demands not only that the married status should, as far as possible, as long as possible, be maintained, but where a marriage has

been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the

parties tied for ever to a marriage that in fact has ceased to exist.

In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and

civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the

respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been

wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure

what is already defunct de facto. To keep the sham is obviously conductive to immorality and potentially more prejudicial to the public interest than

a dissolution of the marriage bond.

While concluding the judgement, Their Lordships were pleased to recommend to the Union of India to seriously consider bringing an amendment in

the Hindu Marriage Act, 1955, to incorporate irretrievable break down of marriage as a ground for the grant of divorce. However, no legislation

has been passed in this regard so far. The following are the decisions of the Supreme Court, wherein, the uniform view has been taken by the

Supreme Court in this regard.

Satish Sitole Vs. Smt. Ganga,

Sanghamitra Ghosh Vs. Kajal Kumar Ghosh,

(2006) 13 SCC 272, Sujata Uday Patil vs. Uday Madhukar Patil

Manjula Vs. K.R. Mahesh,

Vinita Saxena Vs. Pankaj Pandit,

Durga Prasanna Tripathy Vs. Arundhati Tripathy,

Praveen Mehta Vs. Inderjit Mehta,

Ashok Hurra Vs. Rupa Bipin Zaveri,

V. Bhagat Vs. Mrs. D. Bhagat,

In addition, the two Full Bench Judgments of Supreme Court in A. Jayachandra Vs. Aneel Kaur, and in Samar Ghosh Vs. Jaya Ghosh, also,

identical view has been taken and divorce was granted on the ground. Two Division Bench Judgments have also been cited on the appellant''s side

in Dr. Gopal Ramanathan vs. Jayashree reported in 2008 3 L.W. 864 and in Mr. K. Umasankar Vs. Mrs. Suryakala, wherein, this Court has

taken similar view.

This Court after going through the evidence on record and other circumstances of the case is able to discern the intention of the parties. They

have been continuously living separately without sincere attempt or any intention to have reunion between them. Hence, the continuance or allowing

the existence of marriage between them will not serve any purpose and hence, their marital relationship has to be put to an end by dissolving their

marriage, which could be obtained by grant of a decree for divorce.

It is reiterated that the parties had been living apart for the past 25 years. Even after the receipt of notice from this Court, the respondent has

been remaining without any appearance before this Court which also indicates that she is not coming forward to contest the case or to request the

Court to refer the matter for mediation etc.

Since the marriage has become a mirage, nothing would serve by continuance of the nuptial relationship. This Court also observed that the

ground of cruelty raised by this appellant has been established, since, it was admitted that she lodged a police complaint, but, it was not properly

investigated and the contentions of the complaint, in view of the police were not true. In these circumstances, this court is fortified in its view to

grant a decree of divorce on the ground of irretrievable break down of marriage. Hence, the orders passed by the courts below have to be

inevitably be set aside and accordingly set aside and the Civil Miscellaneous Second Appeal deserves to be allowed.