LAWS(MAD)-2018-9-323

R PADMINI Vs. T HEMACHANDRAN

Decided On September 14, 2018
R Padmini Appellant
V/S
T Hemachandran Respondents

JUDGEMENT

(1.) The appellant/wife has come forward with this appeal challenging the validity and/or correctness of the Order dated 05.11.2016 passed in F.C.O.P. No. 143 of 2014 on the file of Family Court, Vellore, by which the Family Court allowed the Original Petition filed by the respondent/husband and granted a decree of divorce on the ground of desertion.

(2.) The respondent herein has filed F.C.O.P. No. 143 of 2014 before the Family Court, Vellore contending that he married the appellant on 14.05.1992 and the marriage was solemnised at Vellore as per Hindu rites and customs in the midst of friends, relatives and family members of both sides. At the time of marriage, the respondent as well as the appellant were employed as Teacher in Government school. The respondent is a physically challenged person and it was also known to the appellant prior to the marriage. However, from the beginning of the marriage, the appellant teased the respondent by citing his physical disability. Further, as the appellant was also employed and earning money, she paid scant regard and respect to the respondent, as a husband. Due to the wedlock between the appellant and the respondent, a male child was born on 01.06.1993, however, within eight days of the birth, the child died due to medical complication. According to the respondent, the appellant did not discharge her matrimonial obligation as a dutiful Hindu wife and there were quarrel and confrontations emanated between the couple very often when they resided together. Further, the appellant did not return to the matrimonial home and stayed in her parents house since February 1993. There were also panchayats held but the appellant did not heed to the advise given by the elders. The appellant, without any just and sufficient cause, is residing separately from 03.01993. The appellant had also given a false complaint before the All Women Police Station against the respondent and his family members which necessitated them to approach the Court seeking Anticipatory Bail. The respondent made repeated demands to the appellant to rejoin him in the matrimonial home, but it went in vain. Therefore, on 24.08.1993, the respondent caused a notice to the appellant through his lawyer for which a reply dated 11.09.1993 was sent by the appellant with false and untenable averments. The respondent, thereafter, filed HMOP No. 108 of 1993 before the Sub Court, Vellore seeking dissolution of marriage on the grounds of desertion. The said HMOP No. 108 of 1993 was dismissed on 109.2008 against which the respondent filed CMA No. 369 of 2009 before this Court. The Division Bench of this Court, while dismissing the CMA No. 369 of 2009 on 30.06.2011, has observed that the respondent herein has filed the HMOP No. 108 of 1993 within two years of desertion of the appellant, therefore, it is open for him to move the appropriate forum to redress his grievance and the dismissal of the appeal would not prevent the respondent to move the appropriate forum for relief. In the light of the aforesaid observation made by this Court in CMA No. 369 of 2009 dated 30.06.2011 and the fact that the appellant has not joined the matrimonial company of the respondent inspite of demands made and also since she did not file any petition for restitution of conjugal rights, the respondent was constrained to file the present petition in HMOP No. 208 of 2011 before the Sub Court, Vellore, which stood transferred to the Family Court, Vellore and was re-numbered as FCOP No. 143 of 2014. According to the respondent, the appellant and the respondent are residing separately from 03.01993 for about 18 years and by virtue of such long and continued separation, the matrimonial relationship between them had broken down irretrievably without any scope for re-union. Therefore, the respondent has filed FCOP No. 143 of 2014 for dissolution of the marriage on the ground of desertion.

(3.) The appellant has filed a Counter affidavit in HMOP No. 208 of 2011 (re-numbered as FCOP No. 143 of 2014) contending that the appellant discharged her obligations as a dutiful Hindu wife and looked after the respondent and his family members well. The allegation that the appellant had given a false complaint against the respondent and his family members was denied as false. According to the appellant, she did not part with the matrimonial company of the respondent without any just and sufficient cause but she left the matrimonial home when she was pregnant. The allegation that the appellant did not take any steps to rejoin the matrimonial company of the respondent was also denied as false. According to the appellant, after she became pregnant, she went to her parents house for delivery on 24.02.1993 and thereafter, the respondent never cared to come and even meet the appellant at her parents house. The respondent was only interested in getting her monthly salary and he has not taken personal care of the appellant at the time of her pregnancy. Further, even though the birth of the child was intimated to the respondent, he did not come and see the child immediately. It is further stated that at the time of birth, the child had a deformity or defect in the spinal cord and that there was no movement for the child below the hip. The Doctors also informed that the child would not survive. Even though the deformity of the new born child was informed to the respondent, he or his mother did not care to come and see the appellant and the child. After much persuasion and reluctance, the respondent came to see the appellant and the minor child. Unfortunately, within eight days of the birth, the new born child died. Thereafter, the respondent did not come and see the appellant and therefore, only in order to ensure that the respondent takes back the appellant in the matrimonial home, she has given a complaint to the All Women Police Station. Even after such complaint, the respondent refused to take the appellant back to the matrimonial home. It was also stated by the appellant that the respondent and his mother ill treated her from the beginning of the marriage. Further, all the efforts taken by the appellant to rejoin the matrimonial home went futile and in such event, it cannot be said that the appellant has not taken any efforts to rejoin the respondent. Thus, it is contended by the appellant that the desertion from the matrimonial company of the respondent is neither wilful nor deliberate. In fact, the respondent had earlier filed HMOP No. 108 of 1993 in which he had made wild allegations against the appellant and it was contested by her. After contest, HMOP No. 108 of 1993 was dismissed by the Sub Court, Vellore and it was also confirmed by this Court in CMA No. 369 of 2009. There is no cause of action for filing the present petition and the present petition is hit by the principles of res judicata. When the earlier petition filed by the respondent in HMOP No. 108 of 1993 was dismissed, the present petition is not maintainable and therefore she prayed for dismissal of the Original Petition.