G.SENTHIL IYAPPAN Vs. S.KAVITHA

JUDGEMENT

(1.) Heard learned counsel for the parties through video conferencing due to the Covid-19 pandemic.

(2.) This civil miscellaneous second appeal has been filed challenging the concurrent findings of both the Courts below, raising the following substantial questions of law:-

(3.) Mr.Harinath, learned counsel appearing for the appellant/husband argued that after the solemnization of marriage between the parties on 10/7/2003 at Vasavi Mahal, Justice Sundaram Hall, Salem as per the Hindu rites and customs in the presence of well-wishers belonging to both families, they were living together only for about three months. At the time of marriage, the appellant was employed in Trivandrum. But the respondent was avoiding the appellant to lead a matrimonial life. Supporting his submissions, learned counsel stated that the appellant being employed in Trivandrum, left the respondent in his house at Erumapatti and he used to visit his native place Erumapatti once in a month or once in two months. But during that time, the respondent was avoiding the appellant/husband to lead the marital life. When questioned as to why she was avoiding the appellant, the respondent stated that she wanted to continue her education and that the marriage was held against her willingness. Therefore, it was not possible for her to lead the marital life with the appellant. But later on, the appellant came to know that the respondent was having some ailments and supressing the same, she got married. Keeping in mind her ailments, the appellant invited the parents of the respondent to come to Erumapatti and the parents of the respondent also informed the appellant that they would come with the medical records. But they did not turn up thereafter. In the meanwhile, from 28/10/2003, the respondent, deserting the appellant, started living separately. Therefore, he filed the petition for divorce to dissolve the marriage held on 10/7/2003 under Sec. 13(1)(i-b) of the Hindu Marriage Act in H.M.O.P.No.259 of 2005, taking a ground that there was a desertion and also consequent cruelty caused to the matrimonial life of the appellant/husband, by the respondent. The respondent filed a counter affidavit stating that only the appellant neglected and avoided the respondent and she was always ready to live with the appellant to lead the matrimonial life. Finally the trial Court took up the matter for trial and after examination of the witness P.W.1 and also the documents Exs.P1 to P3 and on examination of the witness R.W.1 and also the documents Exs.R1 to R7, dismissed the H.M.O.P.No.259 of 2005 on the ground that the appellant/husband failed to make out the case of desertion, by the judgment dtd. 29/8/2011. Aggrieved thereby, an appeal was filed in C.M.A.No.462 of 2011 on the ground that the trial Court failed to appreciate the Exhibits P1 to P4 and also the other crucial evidence placed by the appellant. Moreover, it was also pleaded before the lower appellate Court that the trial Court miserably failed to consider the admission of the respondent that she was having ailments in her body and thereupon prayed for setting aside the final decretal order passed by the learned Subordinate Judge, Namakkal.