Veluswamy v. Sumathi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.03.2020

CORAM

THE HONOURABLE MR. JUSTICE M. DURAISWAMY C.M.S.A.No.42 of 2011 Veluswamy ... Appellant/ Appellant / Petitioner v.

Sumathi ... Respondent/ Respondent/ Respondent Civil Miscellaneous Second Appeal filed under section 28 of the Hindu Marriage Act, 1955, r/w section 100 of CPC against the judgment and decree dated 21.01.2011 made in C.M.A. No.9 of 2009 on the file of the Principal District Judge, Coimbatore concurring the fair and final order dated 14.10.2008 made in H.M.O.P. No.30 of 2007 on the file of the Subordinate Judge, Thiruppur.

For Appellant : Mr. A. Sriram for Mr.N.Balakrishnan For Respondent : Mr. C. Veeraraghavan

J U D G M E N T

Challenging the Judgment and decree passed in C.M.A. No.9 of 2009 on the file of the Principal District Court, Coimbatore, confirming the order passed in H.M.O.P. No.30 of 2007 on the file of the Subordinate Court, Thiruppur, the appellant, who is the husband of the respondent, has filed the above Civil Miscellaneous Second Appeal.

2.1 The appellant filed the petition in H.M.O.P. No.30 of 2007 for divorce on the ground of cruelty.

2.2 It is the case of the appellant that the respondent used to quarrel with him and gave much torture and mental agony to him. Out of the wedlock, she delivered a female child on 28.10.2005. The respondent did not take care of the child properly, however, quarreled with the appellant and also threatened him that she is going to commit suicide along with the child. In these circumstances, the appellant has filed the Original Petition seeking for divorce on the ground of cruelty.

3. The respondent filed her counter disputing the averments stated in the petition. In the counter, she has specifically stated that there is no misunderstanding between her and the appellant. Further, she has stated that she is

always ready and willing to live together with the appellant.

4. Before the Trial Court, on the side of the appellant, 3 witnesses were examined and 5 documents, Exs.P-1 to P-5 were marked and on the side of the respondent, 2 witnesses were examined as R.W.1 and R.W.2, however, no document was marked.

5. The Trial Court, taking into consideration the case of both the parties, dismissed the Original Petition. Aggrieved over the same, the appellant preferred an appeal in C.M.A.No.9 of 2009 on the file of the Principal District Court, Coimbatore and the Lower Appellate Court also confirmed the order passed by the Trial Court in H.M.O.P. No.30 of 2007. Aggrieved over the concurrent Judgments of the courts below, the appellant has filed the above Civil Miscellaneous Second Appeal.

6. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the appellant had miserably failed to establish the plea of cruelty before the courts below. In fact, P.W.3, who was examined on the appellant, herself had deposed in favour of the respondent and stated that the respondent had not committed any cruelty and the appellant and the respondent are living happily. Further, the evidence of P.W.1 and P.W.2 also did not support the case of the appellant. On the contrary, the evidence of R.W.1 and R.W.2 supported the case of the respondent and they have stated that the respondent had not treated the appellant cruelly. In the absence of any evidence in support of the appellant, the courts below have concurrently dismissed the Original Appeal.

7. The appellant has not raised any substantial question of law in the Civil Miscellaneous Second Appeal. That apart, I do not find any substantial question of law in the Civil Miscellaneous Second Appeal warranting interference in the concurrent judgments of the courts below.

8. In these circumstances, the Civil Miscellaneous Second Appeal is liable to be dismissed. Accordingly, the Civil Miscellaneous Second Appeal is dismissed. No costs. Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar Rj

To

1. The Principal District Judge, Coimbatore

2. The Subordinate Judge, Thiruppur.

+1cc to Mr.C.Veeraraghavan, Advocate SR.No. 23016 +1cc to Mr.M.N.Balakrishnan, Advocate SR.No. 23349 C.M.S.A.No.42 of 2011 A.SK(22.04.2021)