BHUVANESWARI D/O NAGARAJAN Vs. S. K. JAYAKUMAR

JUDGEMENT

(1.) Mrs.Bhuvaneswari, Wife of Mr.S.K.Jayakumar has brought forth this civil miscellaneous appeal, having been aggrieved by the judgment and decree dated 19.11.2018 passed in F.C.O.P.No.36 of 2013 by the learned Family Court Judge, Salem, dissolving the marriage solemnized on 16.2.2011 between the parties under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, accepting the case of the respondent/husband that the appellant/wife has caused mental cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

(2.) Mr.G.Saravanabavan, learned counsel appearing for the appellant/wife pleaded that when the marriage between the parties was solemnized on 16.2.2011 at Uthumalai Sri Balasubramaniar Sri Chakara Devi Thirukoil, Seelanaickenpatti, Salem, as per the Hindu rites and customs, in the presence of well-wishers of both the families, they were living happily. The respondent/husband was employed as software engineer in a private concern and was residing at Chennai, whereas the appellant/wife, employed as software engineer in IBM company at Bengaluru, was earning a sum of Rs.7,50,000/- per annum. Although the matrimonial life of the parties had commenced initially at Salem, they later shifted to Chennai and continued their matrimonial ties. However, making false allegations that even prior to marriage, the mother of the appellant as well as the appellant started to pass ill-comments against the respondent and his family members, that the appellant has been attempting to physically assault the respondent/husband by using filthy words and that she used to threaten the respondent that a false case would be lodged for inducing her to commit suicide and that under the guise of delivery, she left the matrimonial home four months prior to the delivery of the girl child on 9.8.2012 and till date, she has not even come back to resume the matrimonial life, which in turn had caused continuous mental cruelty to the respondent herein and his family members, the respondent has filed the petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act before the Family Court, Salem.

(3.) Opposing the above prayer, a detailed counter affidavit has been filed refuting the allegations made by the respondent/husband that he has not given silk sarees worth Rs.25,000/-, that the marriage reception expenses of Rs.4,00,000/- was not met by the respondent, that in order to pay the monthly instalments, the respondent/husband used to avail the ATM card of the appellant till February, 2014 and that in order to pay the advance amount of Rs.5,00,000/- for purchase of a house, the respondent had also sold out the gold jewels of the appellant. Moreover, when the appellant and the respondent were blessed with a girl child, only the mother of the respondent alone visited the hospital to see the newly born child and they never came up to the house of the appellant to see them. Besides, when the naming ceremony of the child was held, the respondent alone came, but none of his family members attended the function. In addition thereto, it was specifically averred that even on the day of naming ceremony of the child, the respondent came and quarrelled with the appellant that on that date itself, he intended to take back the appellant along with the child to the matrimonial home. However, under the guise of calling the auto-rickshaw, the appellant left the place at about 11.00 A.M., and during the month of January, 2013, he has suddenly filed the present petition seeking divorce against the respondent/wife, which is unjust and unfair. Therefore, it was pleaded before the trial Court that for the simple reason that the appellant is black in complexion, the respondent and his family members have not even entertained the appellant/wife. Moreover, when the mother of the respondent also unfairly used to coerce the respondent/husband to divorce the appellant accepting the frivolous request made by the family members, the petition for divorce should have been dismissed. Even a cursory reading of the petition filed by the respondent before the Family Court, Salem clearly shows that the respondent/husband has filed the petition for divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. But, whereas, paragraph-46 of the impugned judgment reflects clearly that the trial Court has travelled beyond the pleadings and has erroneously given a finding on the ground of desertion that was not even asked for by the respondent/husband. Therefore, the findings and conclusions reached by the trial Court for granting the decree of divorce by dissolving the marriage solemnized on 16.2.2011 between the parties, are liable to be set aside by allowing this appeal.