Navaneetham vs S.S. Jayarama Pillai

Govardhan, J.—This appeal arises out of the order passed by the learned District Judge of East Thanjavur at Nagapattinam, dated

31.8.1994 dismissing the O.P. No. 11 of 1984 filed u/s 13 (1)(i-b) of the Hindu Marriage Act.

The petitioner in the abovesaid O.P. has filed the same seeking divorce from her husband alleging that the respondent who is her husband is

committing cruelty and has deserted her.

The respondent has filed a counter resisting the petition stating that the petitioner was discarding and disrespecting him and she had deserted her

children and eloped with one Kaliayaperumal and therefore she is not entitled to a decree for divorce.

The learned District Judge of East Thanjavur at Nagapattinam, after enquiry had dismissed the application.

From the impugned order, it is seen that the petitioner and the respondent have examined themselves as P.W.1 and R.W.1 respectively and the

petitioner has filed two exhibits before the learned District Judge. The learned District Judge, after stating the above facts in Para. 4. of his order,

has given his decision in Para. 5 stating as follows:

I had the benefit of nothing the demeanour of both the petitioner and the respondent while they were giving evidence in the witness box. I am

satisfied that the allegation of cruelty and desertion levelled against the respondent by the petitioner is nothing but false, and this should have been

invented for the purpose of this case. The respondent does not appear to be a man of that sort. He appears to be very docile, both in physic as

well as in the manner in which he has deposed. He has even expressed his willingness to condone the attitude of the petitioner and take her for the

sole benefit of his children. The petitioner is not at all evincing any interest in the respondent as well as her children. She wants a decree of divorce

by hook or crook. I am also satisfied with the respondent''s evidence that the petitioner should have been living with one Kaliyaperumal, a teacher

as man and wife.

This paragraph of the judgment of the learned District Judge shows that the learned Judge has come to the conclusion that the petitioner is not

evincing any interest in the respondent as well as her children only from the demeanour in which she gave evidence and not from the evidence

placed before him. Any Judge who is holding enquiry is entitled to note the demeanour of the witness who is giving evidence before him and decide

the truthfulness or otherwise of the evidence adduced by him. But, it may not be proper for any Judge either to accept or disbelieve the evidence of

a witness from the manner in which the witness is giving evidence before him alone. The demeanour of the witness can only be an additional factor

which can be taken note of by the Judge apart from the evidence placed before him. In the impugned order, the learned District Judge has not

stated anything about the evidence adduced by both parties. He has stated as to why he is not believing the evidence of the petitioner and as to

why he is satisfied with the respondent''s evidence. Without giving reasons or grounds for disbelieving the evidence of the petitioner and believing

the evidence of the respondent, the learned Judge has come to the conclusion which are against the interest of the petitioner. The petitioner and the

respondent were living as husband and wife for more than 16 years. If inspite of it, the petitioner chooses to file an application for divorce there

must be some reason and it must be considered by the learned District Judge before accepting her case or rejecting her case. So also, when the

respondent alleges adultery against her husband, the learned Judge cannot simply say that he is satisfied with the respondent''s evidence that the

petitioner should have been living with one Kaliyaperumal without giving reasons why he has come to that conclusion. In the above circumstances,

I am of opinion that the manner in which the original petition has been considered and disposed of by the learned District Judge is not proper and

therefore it has to be set aside.

In the result, the appeal is allowed setting aside the order of the learned District Judge, East Thanjavur, at Nagapattinam and the matter is

remitted to the learned District Judge with a direction to take the original petition on file, give notice to both parties to appear before him on a

particular date and after giving opportunity to both of them to adduce further evidence if any on their respective behalf and decide the original

petition on merits in a proper manner. There will be no order as to costs in this appeal.