High Court · 2025

C.M.S.A.(MD)No.18 of 2023learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, by holding that the petitioner has not proved the grounds of desertion and cruelty, dismissed the divorce petition, vide judgment dated 27.11.2018. Aggrieved by the dismissal of the divorce petition, the husband preferred an appeal in C.M.A.No.2 of 2019 and the learned Principal District Judge, Karur, upon considering the materials available on record and on hearing the arguments of both sides, passed the impugned judgment dated 11.01.2023, dismissed the appeal and thereby confirming the order of the trial Court in dismissing the divorce petition. Challenging the dismissal of the appeal, the husband has preferred the present Civil Miscellaneous Second Appeal.10. The learned Counsel for the appellant would submit that the respondent has raised serious and scandalous allegations against her husband, as if he is leading an adulterous life with the said Lakhsmi, w/o Kalimuthu, that the petitioner was severely attacked by the respondent, her two daughters and son-in-laws and for that they were convicted in the criminal case in S.C.No.81 of 2011, on the file of the Subordinate Court, Karur, that the respondent lodged a false and 8/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023frivolous criminal complaint against the petitioner and the said Lakhsmi and on that basis F.I.R., was registered in Cr.No.18 of 2014 and the same is pending in C.C.No.17 of 2019, on the file of the Court of Judicial Magistrate, Aravakurichi.11. The learned Counsel would further submit that though the respondent has stated that she is ready to live with her husband, she has not chosen to file any petition for restitution of conjugal rights during the pendency of the divorce proceedings and the same would go to show that she is not interested in living with the petitioner, that the respondent without any justifiable reason and without issuing any communication or taking steps to try for reunion, simply deserted the petitioner and continued to live with her daughters for the past 20 years and the same would go to show that there is no matrimonial bond between herself and the petitioner, that the respondent has also made number of allegations as if the petitioner had acted in dramas, selling alcohol and leading adulterous life and thereby made the petitioner's life miserable and that therefore, the petitioner is entitled to get divorce on the twin grounds of desertion and cruelty.9/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 202312. The learned Counsel for the respondent would submit that the petitioner has miserably failed to prove that the respondent left the matrimonial home in the year 2005 and since then she has been living separately, that the respondent has produced ample evidence to show that they were living together till 2011 and he had cordial relationship with the respondent and their daughters and son-in-laws till that time and that the petitioner in the divorce petition itself had shown that the respondnet was residing in the same house where the petitioner was shown to be residing.13. The learned Counsel would further submit that when the respondent returned to their house after attending her second daughter's delivery, she found that the petitioner is having illicit relationship with Lakshmi. w/o Kalimuthu and are living in their matrimonial home and when the same was questioned by the respondent, her daughters and son-in-laws, the petitioner started to lodge several false complaints with an evil intention to get divorce from the respondent and to marry the said Lakshmi, that the respondent and her daughters were punished for the offence under Section 341 I.P.C., and son-in-laws were punished for the offence under Section 323 I.P.C., and fine alone was levied and they were 10/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023acquitted for the offence under Section 307 I.P.C., that the case in Cr.No.63 of 2011, after investigation, was closed by the police as a mistake of fact, that the other case in Cr.No.150 of 2012 is now pending for trial, that the petitioner executed a sale deed dated 23.08.2012 in favour of the said Lakshmi without any sale consideration with an intention to grab the property from the respondent and her daughters, that the petitioner and the respondent lived together as husband and wife for more than 30 years till the date of filing of the divorce petition and if any divorce is granted at this stage, she would be put to grave hardship and that the Courts below rightly dismissed the claim for divorce.C.M.P.(MD)No.4632 of 2025:14. The appellant/petitioner filed the above application under Order 41 Rule 27 C.P.C., for reception of additional evidence.15. The case canvassed by the petitioner in the above petition for reception of additional evidence is that the petitioner's daughter Vennila at the instigation of the respondent filed a suit for partition against the petitioner and others in O.S.No.233 of 2011, on the file of the Principal 11/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023Subordinate Court, Karur and the suit was allowed to be dismissed for default on 27.08.2021, that the respondent lodged a criminal complaint against the petitioner and Lakhsmi before K.Paramathi Police Station on 30.01.2014 and the same was registered in Cr.No.18 of 2014 and after filing of the charge sheet, the case was taken cognizance in C.C.No.17 of 2019, on the file of the District Munsif cum Judicial Magistrate, Aravakurichi, that when the petitioner was having discussion with his Counsel for advancing the arguments in the present appeal, he was informed that he should have filed the documents with regard to the above two cases to prove the ground of cruelty, that the petitioner has now produced the judgment and decree made in O.S.No.233 of 2011 and the copy of the F.I.R., registered in Cr.No.18 of 2014 and are very vital to prove his case, that the respondnet lodged false complaint against him and also instigated their daughter to file the above civil suit for partition and that therefore, it has become just and necessary to receive the said documents, or else, he will be put to irreparable loss and hardship.16. The respondent filed a counter affidavit raising objections and further stated that the documents now sought to be received came into existence after the filing of the divorce petition, that the petitioner has 12/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023not shown any reason or ground as to why the said documents were not produced before the trial Court or the first appellate Court, that the above petition has been filed only to drag on the proceedings and that therefore, the same is liable to be dismissed.17. According to the petitioner, their daughter Vennila filed a suit for partition inO.S.No.233 of 2011 against him and others and subsequently the same was dismissed for default. It is the further case of the petitioner that the respondent lodged a false police complaint against him and the said Lakshmi and the same is now pending in C.C.No.17 of 2019, on the file of the District Munsif cum Judicial Magistrate, Aravakurichi. As rightly contended by the learned Counsel for the respondent, since the criminal case is still pending, the petitioner cannot be allowed to say that it was a false complaint. Moreover, according to the respondent, just because the suit filed by their daughter was dismissed for default, it cannot be stated that the suit was filed at the instigation of the respondent.18. At this juncture, it is necessary to refer the decision of the Hon'ble Supreme Court in Sanjay Kumar Singh Vs. The State of 13/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023Jharkhand in Civil Appeal No.1760 of 2022, wherein by referring to the earlier decision of the Hon'ble Supreme Court in A.Andisamy Chettiar Vs. A.Subburaj Chettiar reported in (2015)17 SCC 713, it has been specifically observed that the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause and that therefore, the true test is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. 19. In the case on hand, applying the dictum laid down by the Hon'ble Supreme Court in the above decision, this Court is of the view that the evidence and other materials already available before this Court are sufficient enough to pronounce the judgment, without taking into consideration the additional documents sought to be received.14/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 202320. The petitioner has claimed divorce on twin grounds of desertion and cruelty. Specifically, regarding desertion, the petitioner alleges that in 2005, the respondent attempted to poison him by mixing poison in food. When the petitioner suspected foul play, he fed the food to his dog, which subsequently died. Shortly after, the respondent left the matrimonial home to reside permanently with her daughter at Nachiyarkovil, thereby deserting the petitioner.21. It is the specific stand of the respondent that they lived together until the divorce petition, citing three aspects to support their claim of a cordial relationship. Notably, the respondent's mother executed a settlement deed (Ex.R.1) on 09.07.2010, with the petitioner signing as an attesting witness. Additionally, the petitioner's attendance at his granddaughter's ear-piercing ceremony on 11.08.2010 suggests no apparent family disputes at that time. Furthermore, Ex.R.3 bank challans show the petitioner's son-in-laws deposited funds into his account between 03.07.2010 and 03.02.2011.22. The contention of the learned counsel for the respondent, accepted by the courts below, highlights that the petitioner's claim of 15/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023desertion in 2005 is implausible given his subsequent actions, including attesting a settlement deed in 2010, participating in his granddaughter's ear-piercing ceremony in 2010, and receiving deposits from his son-in-laws into his bank account from 2010 to 2011, thereby rendering the desertion claim patently false.23. As rightly pointed out by the learned Counsel for the respondent, the petitioner in his divorce petition has shown the address of both parties as one and the same. In cross-examination, P.W.1 would admit that he was having one house property at Kuppam village, Aravakurichi Taluk and even according to the petitioner, the respondent was residing in the same house at the time of filing of the divorce petition. Considering the above, the Courts below have rightly come to a decision that the petitioner has miserably failed to prove the ground of desertion.24. Now turning to the ground of cruelty, it is the specific case of the petitioner that he was subjected to cruelty both physically and mentally. The first complaint of the petitioner is that the respondent attempted to poison him in 2005 by mixing poison in food, which he fed 16/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023to his dog, resulting in its death. Notably, Admittedly, the petitioner did not file a complaint about the alleged incident until much later. Even according to the petitioner, he lodged complaints before the Superintendent of Police on 25.08.2012 under Ex.P.7, the Tamil Nadu Chief Minister's Cell on 04.10.2012 under Ex.P.11 and again the Superintendent of Police, Karur on 28.11.2012 under Ex.P.14. As rightly pointed out by the learned Counsel for the respondent, the petitioner in none of the above complaints, has referred the poisoning incident occurred in the year 2005. As already pointed out, the petitioner's claim that the respondent left the matrimonial home permanently after the poisoning incident, is also not proved. Except for the interested testimony of the petitioner, there is absolutely no evidence to prove the alleged poisoning incident.25. The respondent's primary contention is that she, her daughters, and son-in-laws maintained a cordial relationship with the petitioner until Lakshmi, wife of Kalimuthu, entered their lives, causing problems. According to the respondent, issues arose when she and others questioned the petitioner's alleged illicit relationship with Lakshmi, prompting the petitioner to file false complaints against them. Although 17/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023the petitioner denies this alleged relationship, the respondent has presented evidence to substantiate her claims.26. Notably, the petitioner claims he only became acquainted with Lakshmi when he sold his property to her on 23.08.2012, as per the sale deed Ex.R.8. However, the respondent has produced scan reports dated 06.02.2012, 10.02.2012, 08.03.2012, and 27.03.2012 (Ex.R.6), found in the petitioner's house, which relate to Lakshmi and describe her as the petitioner's wife. The petitioner does not attribute these scan reports to the respondent. As the learned counsel for the respondent aptly pointed out, the sale deed Ex.R.8 was executed nearly six months after these scan reports, casting doubt on the petitioner's claim.27. It is evident from Ex.R.5 records that the petitioner's father lodged a complaint against the petitioner and Lakshmi, alleging that Lakshmi was living with the petitioner and both had attacked him, resulting in injuries. This led to the registration of FIR No. 183/2012 on 12.10.2012. Notably, Lakshmi surrendered before the Judicial Magistrate No. II on 05.11.2012 by showing the petitioner's address as her own, in the surrender petition filed under Ex.R.4. The petitioner himself admitted 18/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023that Lakshmi was a resident of Vellakovil and had lost her husband in an accident. Furthermore, the petitioner testified that he and Lakshmi jointly engaged the same advocate, M.Venkateswaran, for filing their surrender petition. Based on these factors and the evidence on record, the learned appellate Judge concluded that the petitioner's illicit relationship with Lakshmi was the root cause of the disputes between the petitioner and the respondent.28. The learned Counsel for the petitioner would submit that the respondent and her family members were convicted in S.C.No.81 of 2011 (Ex.P.3 judgment dated 16.03.2012) based on the petitioner's complaint in Cr.No.10 of 2011, which alleged an attack and attempt to kill him. Although the case involved charges under Sections 341, 323, and 307 IPC, the court convicted the respondent and her daughters under Section 341 IPC and the son-in-laws under Section 323 IPC, while acquitting them of the Section 307 IPC charge. The respondent stated that since the court only imposed a fine, they chose not to appeal. Notably, the petitioner has also not appealed the acquittal under Section 307 IPC.19/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 202329. It is the further case of the petitioner that the respondent, her daughters and son-in-laws tresspassed into his house, broke open the bero and stole documents, leading to the registration of F.I.R., in Cr.No.63 of 2011. However, according to the respondnet, F.I.R., under Ex.P.4, after investigation, was closed by the concerned police as mistake of fact and the petitioner did not challenge the closure before the jurisdictional Magistrate Court or through revision before a higher Court. Meanwhile, another F.I.R., came to be registered against the son-in-laws of the respondent in Cr.No.150/2012, which is still pending.30. It is the specific case of the petitioner that the respondent lodged a complaint against him and said Lakshmi, claiming they attacked his father. However, it is undisputed that Ex.R.5 F.I.R., came to be registered based on the petitioner's father's complaint and the case was subsequently taken on file as C.C.No.345 of 2012. After the petitioner's father turned hostile during trial, allegedly due to a settlement between the parties, the case ended in acquittal.31. The next main complaint of the petitioner is that the respondent made scandalous claims about him acting in dramas and selling arrack 20/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023and engaging in adultery. The respondent in her evidence would reiterate the said charges. R.W.1 in her cross-examination would say that the petitioner was selling alcohol, but no case was filed against him.32. The learned Counsel for the respondent would submit that since the adulterous conduct of the petitioner gave a way for filing of the criminal cases and consequent filing of the divorce petition, is not entitled to take advantage of his own wrong and as such, he is not entitled to get the relief claimed and relied on the judgment of the Hon'ble Supreme Court in the case of Chetan Dass Vs. Kamala Devi reported in (2001)4 SCC 250, wherein the Hon'ble Supreme Court held that a party seeking divorce who has committed a matrimonial offence, cannot take advantage of their own wrong, and that erring party should not be allowed to break the marital bond due to their own misconduct and the relevant passage is extracted hereunder:“In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the courts below have recorded a finding to the same effect. In such circumstances, in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be 21/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong-doer who, by heart, wished such an outcome by passing on the burden of his wrong-doing to the other party alleging her to be the deserter leading to the breaking point.”33. The above decision is squarely applicable to the case on hand. Even in the present case, though the petitioner has claimed divorce, since the charge of illicit affairs with the said Lakshmi is found to be proved, the petitioner is not entitled to get the relief claimed, as he cannot be allowed to take advantage of his own wrong.22/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 202334. The learned Counsel for the petitioner would submit that the petitioner and the respondent are living separately for more than 20 years from 2005 onwards and that since there has been a long period of continuous separation, it can be considered that the matrimonial bond is beyond repaired and the marriage is broken out irretrievably. The learned Counsel would rely on the decision of the Hon'ble Supreme Court in Prakashchandra Joshi Vs. Kuntal Prakashchandra Joshi alias Kuntal Visanji Shah reported in AIR 2024 SC 692, wherein the Hon'ble Supreme Court by holding that the case before them is a case of irretrievable break down of marriage, dissolved the marriage between the parties in exercise of powers under Article 142(1) of the Constitution of India.35. At this juncture, it is necessary to refer the decision of the Hon'ble Supreme Court in the case of K.Srinivas Vs. K.Sunita reported in 2014 (3) MWN (Civil) 671, wherein the Hon'ble Apex Court has specifically held that power to grant divorce on the ground of irretrievable breakdown of marriage is only available with the Apex Court and the said power is not available to any other Court of law and the relevant passage is extracted hereunder :23/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023“3. Irretrievable breakdown of marriage as a ground for divorce has not found statutory acceptance till date. Under Article 142 of the Constitution, the Supreme Court has plenary powers “to pass such decree or make such order as is necessary for doing complete justice in any case or order pending before it”. This power, however, has not been bestowed by our Constitution on any other Court. It is for these reasons that we have confined arguments only to the aspect of whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle the injured party to claim dissolution of marriage. It will be relevant to mention that the Law Commission of India in its Reports in 1978 as well as in 2009 has recommended the introduction of irretrievable breakdown of marriage as a ground for dissolution of marriage; the Marriage Laws (Amendment) Bill of 2013 incorporating the ground has even received the assent of the Rajya Sabha. It is, however, highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient. But that controversy will be considered by the Lok Sabha.”36. In the case on hand, the marriage was solemnized in the year 1979 and the Courts below found that the parties have been living 24/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023separately since 2011, not 2005 as claimed by the petitioner. Given that the divorce petition was filed in 2013, this Court concur with the Courts below that the prayer for divorce was rightly rejected and there is nothing to interfere with the reasoned findings recorded by the Courts below.37. It is settled law that concurrent findings of fact by the trial court and the first appellate court cannot be interfered with by the High Court under Section 100 CPC, unless there are exceptional grounds. The High Court's role in a Second Appeal is limited to addressing substantial questions of law, not re-appreciating evidence to replace the findings of the courts below. Even if another view is possible, the High Court should not interfere unless the findings are unsupported by evidence or raise a substantial question of law. In this case, no substantial question of law arises for consideration.38. Upon examining the judgments of the courts below, this Court is in agreement with the learned counsel for the respondent that no substantial question of law arises. Consequently, this Court concludes that the Civil Miscellaneous Second Appeal is devoid of merits and is liable to be dismissed. Given the circumstances, each party shall bear 25/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023their own costs.39. In the result, the Civil Miscellaneous Second Appeal is dismissed. The Civil Miscellaneous Petition in C.M.P.(MD)NO.4632 of 2025 is also dismissed. The parties are directed to bear their own costs.04.09.2025NCC : Yes : NoIndex : Yes : NoInternet : Yes : NoSSLTo1.The Principal District Court, Karur,.2. The Additional Subordinate Court, Karur.3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. 26/27 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD)No.18 of 2023K.MURALI SHANKAR,J.SSLPRE-DELIVERY JUDGMENT MADE INC.M.S.A.(MD)No.18 of 202304.09.202527/27