…In the meanwhile smart husband has re married and has only THREE KIDS from next marriage !!!. …..
In this classic case, considering the long separation and disappearance of emotional bonds, both the Family court and HC grant Divorce to the husband (FC smartly claims wife’s desertion is the grounds) . Wife appeals to the HC and claims she was beaten, she was thrown out of the house etc. She points out that the husband has re-married and has children from the second wife!! Ostensibly this husband has NOT paid a penny maintenance as well… Still HC does NOT reverse the divorce that is granted !! smart husband does NOT even appear for the appeal @ HC !!
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2015
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.M.A.No.1679 of 2015
Nallagatla Sukanya @ Chinnamma … Appellant
1. Nallagatla Nagesh,
S/o.Ramiah, aged 33 years,
Anchor Gate Building,
Port Trust, Chennai 600 001.
2. Guntupalli Balaih
Prakasam District, Andra Pradesh. … Respondents
Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, against the fair and decreetal order, passed in F.C.O.P.No.1281 of 2000, dated 02.08.2011, on the file of the Principal Family Court at Chennai.
For Appellant : Ms.A.Veeramarthini
For 1st Respondent : No appearance
(Judgment of the Court was made by M.VENUGOPAL, J.)
- The Appellant/1st Respondent-Wife has preferred the instant Civil Miscellaneous Appeal, as against the order, dated 02.08.2011, in F.C.O.P.No.1281 of 2000, passed by the Learned Principal Judge, Family Court, Chennai. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- The Learned Principal Judge, Family Court, Chennai, while passing the impugned order in F.C.O.P.No.1281 of 2000 (on 02.08.2011), filed by the 1st Respondent/Petitioner-Husband, had inter alia observed as follows: “…12. In the instant case, both the parties have been living separately for the past 19 years and all the efforts of amicable settlement have failed. Time has taken its toll in as much as it has indisputably contributed to uncomenting factor. There has been total disappearance of emotional substratum in the marriage and in that event nothing is gained by trying to keep the parties tied for ever to a marriage which in fact has ceased to exist. Therefore in view of the aforesaid reasoning, I am of the considered view that the Petitioner is entitled to get a decree of divorce on the ground of desertion. and resultantly, allowed the petition, by granting the relief of Divorce, on the ground of ‘Desertion’.
- As regards the grounds of cruelty and adultery, the Learned Principal Judge, Family Court, Chennai, came to a conclusion that the 1st Respondent/Petitioner-Husband was not entitled to the relief of divorce. Added further, the Learned Principal Judge, Family Court, Chennai, had opined that the Appellant/1st Respondent-Wife had left the matrimonial home, without any reasonable cause.
- Feeling aggrieved against the order, dated 02.08.2011, in F.C.O.P.No.1281 of 2000, passed by the Learned Principal Judge, Family Court, Chennai, the Appellant/1st Respondent-Wife has focused the instant Civil Miscellaneous Appeal, primarily on the grounds that the trial Court had failed to observe that the Appellant/1st Respondent-Wife had not deserted the 1st Respondent/Petitioner-Husband. On the contrary, the 1st Respondent-Husband (Petitioner) demanded dowry and on failure to comply with, he forced her to send her to her parent’s home.
- Learned counsel for the Appellant/1st Respondent-Wife urges before this Court that the trial Court had failed to take note of the important aspect, viz., the 1st Respondent/Petitioner(Husband) had married one Rajeswari, after deserting the Appellant/1st Respondent-Wife and through the said Rajeswari, he has three children and living with her.
- Apart from the above, Learned Counsel for the Appellant/1st Respondent-Wife would vehemently contend that the Appellant had taken several steps, including by filing a complaint before the Police for re-union, as seen from Ex.R1 and due to non-cooperation of the 1st Respondent/Petitioner-Husband, the matter proved futile.
- Continuing further, it is also represented by the Learned counsel for the Appellant/1st Respondent-Wife that the Appellant-Wife has been living separately, only because of the attitude of the 1st Respondent/Petitioner-Husband, who deserted her and therefore, she has no other option to lead and live separately.
- The Learned counsel for the Appellant proceeds to project an argument that the trial Court had failed to appreciate the evidence of RW.1 (Appellant), to the effect that the 1st Respondent/Husband had beat her mercilessly on 01.01.1992 and she was bleeding profusely. Also that, on the same day, she was forcefully taken in a cycle rickshaw to Korukkupet Railway Station at 10.20 P.M., boarded with Mother-in-Law, Bolamma, Baleswari, Eswaramma, Sister-in-Law and when the train reached Singarayakonda Station at 10.30 A.M., they had left her alone, without ticket and she herself boarded the bus to to go over her parent’s house.
- The last submission made, on behalf of the Appellant, is that the trial Court had failed to note that the Appellant/1st Respondent-Wife was perforced to file a case for maintenance in M.C.No.1 of 1997, on the file of the Learned Additional District Munsif Magistrate, Kandukur and a maintenance of Rs.300/- per month, was awarded in her favour, but the 1st Respondent/Petitioner-Husband had failed to comply with the said order.
- It is to be noted that the marriage between the 1st Respondent/Petitioner (Husband) and the Appellant/1st Respondent (Wife) took place on 13.10.1988 at Old Washermanpet, Chennai, according to Christian Rites and Customs. Admittedly, no child was born to the Appellant/1st Respondent-Wife, through the 1st Respondent/Petitioner-Husband.
- The stand of the 1st Respondent/Petitioner-Husband before the Learned Principal Judge, Family Court, Chennai, in F.C.O.P.No.1281 of 2000, was that the Appellant/1st Respondent-Wife had an illicit relationship with the 2nd Respondent in the Original Petition, viz., Gunallapalli Balaih, who is the son of the maternal aunt. Also that, he was shocked to witness the illicit relationship between the Appellant and the 2nd Respondent herein and both were caught red handed, during the course of illicit intimacy, etc. Furthermore, the Appellant/1st Respondent-Wife left the matrimonial home, on her own volition on 10.01.1992, deserting the 1st Respondent/Petitioner-Husband.
- Under the aforesaid circumstances, the 1st Respondent/Petitioner-Husband was perforced to file F.C.O.P.No.1281 of 2000, on the file of the Learned Principal Judge, Family Court, Chennai. Before the Family Court, the Appellant/1st Respondent-Wife had filed a detailed counter/statement of objections, denying the averments/stand taken by the 1st Respondent/Petitioner-Husband.
- That apart, the Appellant/1st Respondent (Wife) had projected a case, as if, she was beaten by her Husband, viz., 1st Respondent/Petitioner (Husband), on 01.01.1992 and forcefully taken her to Korukkupet Railway Station at 10.20 P.M., etc. The Appellant/1st Respondent-Wife, in her counter/objections, had categorically denied the allegations of her illicit intimacy with the 2nd Respondent herein, Gunallapalli Balaih and she came out with a plea that she never had any illicit intimacy with the said Gunallapalli Balaih and never deserted the 1st Respondent/Petitioner (Husband), as claimed by him.
- Before the trial Court, the Husband, viz., 1st Respondent/Petitioner was examined as PW.1 and on his behalf, another witness, PW.2, was examined. On behalf of the Appellant/1st Respondent-Wife, witnesses, Rws.1 and 2, were examined. Besides, on the side of the 1st Respondent/Petitioner-Husband, Exs.P1 and P2 marked. On the side of the Appellant/1st Respondent-Wife, Ex.R1 was marked.
- The trial Court, on a careful consideration of the entire facts and attendant circumstances of the case, in an encircling fashion and after going through the available materials on record, had resultantly held that the 1st Respondent/Petitioner-Husband was not entitled to divorce, on the grounds of cruelty and adultery. But the trial Court had given a categorical finding that the Appellant/1st Respondent-Wife had left the matrimonial home, without any sufficient/reasonable cause. Insofar as relief of divorce was concerned, the trial Court had granted the relief of divorce, mainly on the ground of desertion, made by the Appellant/1st Respondent-Wife. As such the trial Court had allowed F.C.O.P.No.1281 of 2000, to the extent, as indicated supra. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- This Court had carefully heard the arguments of the Learned counsel for the Appellant/1st Respondent-Wife and also perused the order of the trial Court in F.C.O.P.No.1281 of 2000, dated 02.08.2011.
- On going through the contents of the order, passed by the trial Court in F.C.O.P.No.1281 of 2000, dated 02.08.2011, this Court is of the considered view that the trial Court had dealt with the matter in an elaborate manner and deliberated upon the rival contentions of the parties, in a meticulous and careful fashion and ultimately allowed the petition, only on the ground of desertion. However, it dismissed the petition, for divorce filed by the 1st Respondent/Husband, on the ground of cruelty and adultery.
- In view of the foregoing analysis, this Court is in complete agreement with the view taken by the trial Court, in allowing the Original Petition. In fact, this Court is not in a position to take a different view in Appeal, than the one taken by the trial Court. As such, this Court held that the instant Civil Miscellaneous Appeal, filed by the Appellant/1st Respondent-Wife, is devoid of merits.
- In fine, the Civil Miscellaneous Appeal is dismissed. No costs.
S. MANIKUMAR, J.
AND M. VENUGOPAL, J.
(S.M.K., J.) (M.V., J.)
To The Principal Family Court, Chennai.
C.M.A.No.1679 of 2015
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