G.Felshia Vasanthi vs R.Sekar @ Gunasekar And Others

This civil miscellaneous appeal is filed by the wife being aggrieved by the decree of divorce granted by the Family Court, Madurai, dated 06.12.2010 in I.D.O.P.No.34 of 2003.

It is unfortunate that the civil miscellaneous appeal is pending before this Court, without any adjudication, for the past ten years. When the matter came up for final hearing before this Court on 24.11.2021, the learned counsel for the appellant sought time and there was no representation for the respondents and therefore, the matter was directed to be listed today. Even today, when the matter is taken up for hearing, the learned counsel for the appellant is not ready to get along with the case and sought further adjournment, for which this Court is not inclined for the simple reason that a case of matrimonial dispute challenging the order of dissolution of marriage passed by the Family Court cannot be kept pending for ten years without any adjudication and this Court feels that it has moral and legal responsibility to dispose of cases of this nature within a reasonable time and cannot keep on granting adjournments repeatedly for adjudicating the matter. Hence, the Court has gone through the papers and passes the following orders on merits.

The appellant is the wife and the first respondent is the husband. They are Christians. Their marriage was solemnized on 28.05.1990 at Patrick Church at Tuticorin as per Christian customs and practice. They both started the marital life at Door No.11, Sangeeta Vinayagar Kovil Street, Madurai, along with the parents of the first respondent (husband). About a year after, they shifted their residence to the State Bank Colony bearing Door No.56, Plot No. 25-26, Ponmeni Jainagar, Madurai. Through the wedlock, a male child was born to them on 02.02.2000. It is alleged by the first respondent that the appellant (wife) never used to do the household duties and was arrogant, disrespecting him and his family members and indulged in quarrel. When she was asked to cook food, she threatened him that she will mix poison in the food and give it to him. Further, there are other allegations made by the first respondent (husband) against the appellant (wife) in the divorce petition, like, she is a spendthrift, not interested in leading the family life, but only wanted to lead extravagant and lavish life and spending all his income, besides suspecting his fidelity also. Above all, allegation of adultery has also been made in the petition.

All these allegations were denied by the appellant herein.

To prove the case of cruelty and adultery, the husband examined himself as P.W.1 and one Mari as P.W.2 and 17 documents were marked on his side. In defence, the wife examined herself as R.W.1 and one Christopher as R.W.2 and four documents were marked on her side.

The Trial Court had made an incised scrutiny of the evidence placed before it and penned down a lengthy Judgment running to 51 pages, wherein, the Trial Judge has framed the following points for consideration:

"1. Whether the petitioner is entitled to divorce on the ground of Cruelty U/s.10(1)(x) of the Divorce Act, 1869 as alleged in the petition?

Whether the petitioner is entitled to divorce on the ground of Adultery U/s.10(1)(i) of the Divorce Act, 1869 as alleged in the petition?

Whether the marriage is deserved to be dissolved?

To what relief the petitioner entitled?"

For the above points, the learned Trial Judge has answered as follows:

"Point No.1 : Yes, the petitioner is entitled for divorce on the ground of Cruelty U/s.10(1) of the Divorce Act, 1869 as alleged in the petition.

Point No.2 : Yes, the petitioner is entitled for divorce on the ground of Adultery U/s.10(1)(i) of the Divorce Act, 1869 as alleged in the petition.

Point No.3 : Yes, the marriage is deserved to be dissolved.

Point No.4 : In the result, the petition is allowed and the petitioner is entitled to a decree of divorce on the ground of Cruelty U/s.10(1)(x) and Adultery U/s.10(1)(i) of the Divorce Act, 1869 and the Marriage between the petitioner and the 1st respondent held on 28.05.1990 is hereby dissolved. No costs."

The appellant herein, who is the wife, has contended in this appeal that the Trial Court has misconstrued the documentary evidence Exs.R1 and R2 and failed to consider the inconsistent statement made by P.Ws.1 and 2. The finding of the Trial Court that the conduct of the appellant has caused cruelty to the first respondent is without any substantive evidence. It is specifically contended in the grounds of appeal that the first respondent married one Karmela Rani on 30.08.2003 and only thereafter, the first respondent wanted to throw out the appellant from the matrimonial home based on the false and defamatory allegations of cruelty coupled with adultery.

Relying upon Ex.R1 - Gift Deed, it is contended by the appellant (wife) that the first respondent (husband) has executed Gift Deed dated 04.09.2003 in favour of Karmela Rani citing her as his wife, which will prove that the first respondent has taken the said Karmela Rani as his wife when the marriage between the appellant and the first respondent was in subsistence. Hence, the conclusion of the Trial Court that it was the appellant (wife), who committed adultery and cruelty to the first respondent (husband) is unfound and contrary to the fact, which is other way round. It is also contended that the criminal case initiated by the appellant (wife) in connection with the bigamous marriage of the first respondent with Karmela Rani, though dismissed as not proved, it cannot be totally disbelieved for considering the defence of the appellant (wife).

The short points involved in this case for consideration are as follows:

(i) Whether there was any proven cruelty caused by the appellant (wife) to the first respondent (husband)? and

(ii) Whether the contra allegations made by the appellant (wife) against the first respondent (husband) are proved with adequate evidence?

The ocular evidence on either side is adduced by the parties themselves and the persons interested in their welfare. P.W.2 - Mari is the friend of the first respondent (husband). He has deposed about his witnessing of the appellant in a compromise position with a man, when he visited the first respondent's house on 30.08.2003 to collect his commission amount in the finance business and he has also spoken about the elopement of the appellant (wife) with one Auto driver by name Edison on 05.09.2003. To cock-up this piece of evidence, instead of impeaching the veracity of the evidence of P.W.2, the appellant (wife) has marked Ex.R1 - copy of the Gift Settlement Deed, dated 04.09.2003, alleging that the first respondent (husband) has married one Karmela Rani from Kerala on 30.08.2003 and executed a registered Gift Settlement Deed, dated 04.09.2003, in her favour, which was the immediate cause for driving out her from the matrimonial home. In this regard, the Trial Court has taken note of the fact that the appellant (wife) has initiated criminal proceedings against the first respondent (husband) and his family members as well as the Karmela Rani in C.C.No.135 of 2008, under Sections 498(A), 406, 494 read with 109 I.P.C., on the file of the learned Judicial Magistrate No.I, Madurai and the said case was tried and found to be false. The first respondent and his family members were acquitted by the Magistrate Court. The Trial Court has also taken note of the other criminal complaint filed by the appellant (wife) against the first respondent and nine others for the offence under Sections 417, 419, 420, 468, 471 read with 120(b) I.P.C. The first information report of the said case is marked as Ex.P16. Taking note of all these conducts of the appellant (wife), the Trial Court has rightly pointed out that if really the appellant (wife) was serious about living with her husband (first respondent) and her son peacefully, she should have at least taken some steps to obtain the custody of the minor boy. This conduct of the appellant (wife) is the clear indicative of her character and she has not behaved well as a responsible mother.

Furthermore, the contentions of the appellant (wife) that Kamela Rani is the second wife of the first respondent (husband) and the purchase of properties alleged to have been made by her father in the name of the first respondent (husband) have not at all been established. That apart, with regard to the cruelty not only on the first respondent (husband), but also on the minor boy is concerned, the Trial Court has rightly held that the minor boy is living with his father (first respondent) and the appellant being a mother has not taken any steps to take custody of the child.

On going through the material evidence placed before the Trial Court and the reasonings given by the Trial Court for allowing the divorce petition, this Court does not find any valid ground to interfere with the well considered Judgment of the Trial Court dissolving the marriage held between the appellant and the first respondent herein and therefore, the civil miscellaneous appeal is liable to be dismissed.

In the result, the civil miscellaneous appeal is dismissed and the Judgment and Decree dated 06.12.2010, passed in I.D.O.P.No.34 of 2003, on the file of the Family Court, Madurai, are confirmed. No costs.