Purushothaman v. Shasikala

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.12.2009CoramTHE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HON'BLE MR. JUSTICE T.S.SIVAGNANAM C.M.A.No.47 of 2009Purushothaman ..AppellantVsShasikala ..RespondentCivil Miscellaneous Appeal filed under Section 19 of FamilyCourts Act, 1984 against the judgment and decree dated 02.07.2003made in H.M.O.P.No.608 of 2001 on the file of the Family Court,Coimbatore.For Appellant : Mr.R.Subramanian, Sr. Counsel for M/s.HemalathaFor Respondent : No appearanceJUDGMENT(Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA, J.)This appeal has been filed challenging the order of the FamilyCourt dated 02.07.2003 dismissing the appellant's application fordivorce on the ground of cruelty, filed against his wife. In thisappeal, though notice was duly served on the respondent/wife as earlyas 07.02.2009 through Court, the respondent has chosen not to takeany steps either to appear in person or through counsel. We havetherefore decided to proceed with the appeal on merits. 2.We heard Mr.R.Subramanian, learned senior counsel appearingfor the appellant. 3.The brief facts which are required to be stated are that theappellant and the respondent got married on 28.05.1978 according toHindu Rites and Customs. Initially, they were stated to have beenliving as husband and wife at Dharapuram and subsequently ontransfer, the appellant stated to have shifted to Coimbatore on29.09.1978, where he is stated to have settled down. According to the https://hcservices.ecourts.gov.in/hcservices/ appellant, the marriage was a short lived one inasmuch as therespondent left the matrimonial home on 20.10.1978. It is also thecase of the appellant that to his knowledge, the respondent wasstated to have had intimacy with somebody else even prior to themarriage and that even after the marriage, she continued to maintainthe said relationship, which was not liked by the appellant. It isstated that when the appellant advised her to correct herself, therespondent instead of correcting herself, decided to leave thematrimonial home on and after 20.10.1978. The appellant has furtheralleged in his application before the Court below that he was alsophysically assaulted, at the instance of the respondent, with thehelp of rowdy elements and he was beaten with chappals, in whichprocess, he sustained injuries. It is further alleged that one of theaids of the father of the respondent went to the extent of removingthe sacred thirunamam from the forehead of the appellant. Theappellant has also alleged that at the time when the respondent leftthe matrimonial home, she was confined but subsequently it came tolight that she underwent D & C and after sometime, had an abortion on29.04.1979. It is also stated that earlier the appellant moved the IIAdditional Family Court, Coimbatore in O.P.No.132 of 1984 for divorceon the ground of desertion by the respondent and that thoughinitially, the trial Court granted the decree for divorce, the samewas set aside in appeal, by the learned District Judge, Coimbatore inC.M.A.No.80 of 1986 on 02.03.1987, which was also confirmed inC.M.S.A.No.57 of 1987 by this Court on 14.10.1988 as well as by theHon'ble Supreme Court in S.L.P.(Civil) No.15597 of 1988 dated10.02.1995. In the meantime, the respondent is stated to have filedO.S.No.1559 of 1986 before the District Munsif, Coimbatore formaintenance, which was decreed on 29.04.1991. The said decree washowever set aside in A.S.No.145 of 1991 on 23.09.1991 by thePrincipal Sub Judge, Coimbatore. The respondent is stated to havepreferred second appeal in S.A.No.67 of 1992 and in the said secondappeal, a compromise decree came to be granted on 17.07.2002. As perthe decree of compromise, the appellant agreed to pay a sum ofRs.75,000/- by way of one time settlement towards maintenance claimedby the respondent. Both parties agreed to file necessary applicationin the pending H.M.O.P. No.608 of 2001 for converting the said O.P.as one for divorce by consent under Section 13 B of the HinduMarriage Act. The said compromise memo signed by the appellant,respondent and the respective counsel on 17.07.2002 was accepted bythis Court and a decree in terms of the said compromise memo was alsogranted. However, subsequent to the said decree, though the appellantappeared before the Court below for carrying out necessary amendment,the respondent is stated to have abandoned, since as could be seenfrom the various dates of hearings posted by the Court below from14.08.2002 till the impugned order came to be passed on 02.07.2003.The O.P. was posted on 14.08.2002, 19.09.2002, 06.11.2002,10.01.2003, 29.01.2003, 26.02.2003, 28.03.2003, 09.04.2003,05.05.2003, 23.06.2003, 26.06.2003 and 02.07.2003. https://hcservices.ecourts.gov.in/hcservices/

4.After several dates of hearing, the Court below ordered forfresh notice on 05.05.2003. The hearing of the O.P. was posted to26.06.2003, as per the docket entry dated 23.06.2003. Inspite ofsufficient service of notice, the respondent absented herself andtherefore, she was set exparte. The appellant was examined as P.W.1and the case was again posted on 26.06.2003. On 26.06.2003 also,there was no representation on behalf of the respondent. Thereafter,the Court below after hearing the appellant, posted the O.P. fororders on 02.07.2003, on which date, the Court below passed theimpugned order holding that since necessary joint application formutual divorce by consent was not filed as per the memo ofcompromise, the appellant's application for divorce cannot beallowed. The Court below accordingly dismissed the appellant'sapplication for divorce. 5.Having heard Mr.R.Subramanian, learned senior counsel for theappellant and having perused the impugned order, the allegation ofcruelty alleged in the O.P. filed by the appellant as well as thememo of compromise entered into between the parties which form partof the judgment of this Court dated 17.07.2002 in S.A.No.67 of 1992,we are of the considered opinion that no useful purpose would beserved by dismissing the appellant's application for divorce. It isrelevant to note that while marriage was stated to have beensolemnised on 28.05.1978, the parties parted company as husband andwife as from 20.10.1978. Nearly more than 30 years have gone by andthe appellant and the respondent were not able to live together allthese years. The appellant, who was 27 years old at the time of hismarriage, has spent very valuable part of his life without thecompany of the respondent and he is now 58 years old. The respondenthaving agreed to receive the sum of Rs.75,000/- as one timemaintenance, has also consented for filing an application fordivorce, however, for reasons best known to her, inspite of serviceof notice by the Court below, she did not appear before the Courtbelow for filing necessary application to amend the petition filed bythe appellant as one under Section 13 B of the Hindu Marriage Act.The Court below had therefore no other option except to set herexparte. Even before this Court, as stated by us earlier, inspite ofdue service of notice through Court, she has chosen not to appeareither in person or through counsel. It is therefore quite apparentthat the respondent is totally disinterested in the petition filed bythe appellant for divorce on the ground of cruelty. Inasmuch as shegot her one time maintenance of Rs.75,000/-, which was paid by theappellant on the very date when the compromise memo dated 20.07.2002was filed, by way of demand draft bearing No.326229 dated 15.07.2002she failed to fulfill the other part of the compromise decreedeliberately. Moreover, though as per the compromise memo, theparties agreed to seek for divorce by way of mutual consent, itcannot be held that merely because one of the parties deliberatelyexhibited disinterest to pursue the said course, the very applicationfor divorce does not merit any consideration. https://hcservices.ecourts.gov.in/hcservices/

6.We are of the considered opinion that even though therespondent did not cooperate with the appellant for amending theapplication for divorce as one under Section 13 B of the HinduMarriage Act, the Court below was not in any way precluded fromconsidering the claim of the appellant for divorce on the groundsalleged in the petition. In fact, the respondent did not even botherto file any counter statement to the O.P. for divorce filed by theappellant. Therefore, whatever allegations levelled by the appellantas against the respondent remained uncontroverted and when theappellant went into the box and deposed in support of his claim madein the application for divorce, which evidence was also not rebuttedby the respondent either by way of cross-examination of the appellantor by way of letting in any other evidence contrary to whateverstated by the appellant before the Court below, the Court belowhaving set the respondent exparte ought to have proceeded to grantthe decree as prayed for. 7.In our view, in the light of the fact that there was acompromise decree in S.A.No.67 of 1992 dated 17.07.2002 whichdisclose that the respondent had taken a decision to agree fordivorce and she having received one time maintenance as per the saidcompromise decree, chose not to appear before the Court below, theCourt below ought to have considered the claim of the appellant fordivorce on the grounds raised by him in the said O.P., for which,there was no demur on the part of the respondent and should haveproceeded to grant the decree as prayed for. 8.For all the above stated reasons, we are not in a position tosustain the order of the Court below and while setting aside thesame, we deem it appropriate to allow this appeal as well as theH.M.O.P.No.608 of 2001 filed by the appellant for divorce. Theappellant is entitled for a decree for divorce on the ground ofconstructive desertion as well as cruelty, which was supported by theunrebutted allegation contained in the O.P. as well as the otherevidence placed before the Court below in support of the said claim.The appeal stands allowed. No costs. It is needless to state that theappellant should wait for the expiry of the statutory period of 90days for getting remarried.Sd/Asst.Registrar/true copy/mmiSub Asst.RegistrarTo1. The Family Court Judge, Coimbatore.2. The Section Officer, V.R. Section, High Court, Madras. C.M.A.No.47 of 2009SSN (CO)GSK 29.12.2009.