G. Radhika v. N. Murugesan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT JUDGMENT RESERVED ON : 10.10.2017 JUDGMENT PRONOUNED ON : 26.10.2017

CORAM

THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.SA.(MD).No.36 of 2015 and M.P.(MD).No.1 of 2015 and C.M.P.(MD).Nos.726 and 727 and 6314 of 2017 G.Radhika ...Appellant/1st Respondent Vs.

1.N.Murugesan ....1st Respondent/Appellant 2.G.Banurekha ... 2nd Respondent/2nd Respondent Prayer: This Civil Miscellaneous Second Appeal is filed under section 100 of Civil Procedure Code, to set aside the fair and decretal order dated 23.04.2015 passed in H.M.C.M.A.No.14 of 2012 on the file of the V Additional District Judge of Madurai and to confirm the fair and decretal order dated 06.10.2012, passed in H.M.O.P.No.309 of 2008 on the file of the III Additional Subordinate Judge of Madurai.

For Appellant : Mr.M.Ponniah For Respondents : Mr.V.P.Rajan

JUDGMENT

The respondent/wife has come forward with this appeal, challenging the order of remand, passed by the V Additional District Court, Madurai in H.M.C.M.A.No.14 of 2012, reversing the order passed by the III Additional Sub-Court, Madurai in H.M.O.P.No.309 of 2008, whereby the petition for divorce filed by the respondent/husband was dismissed.

2.The parties are referred to as they were arrayed in the trial court.

3.The petitioner/husband states that he married the first respondent/wife on 29.01.1992 and they lived together happily for a period of 6 months after marriage. Out of wedlock, they got a male child named Sundara Vignesh on 09.08.1993 at Erode. After the birth of the male child, the first respondent never returned to the

matrimonial home. The petitioner waited for nearly 3 years and made attempts to get back the first respondent to the matrimonial house. However, as there was no response from the wife, the petitioner caused a legal notice dated 04.12.1996, seeking divorce on the ground of mental agony and cruelty, to which the respondent has sent a reply, dated 13.12.1996, denying the claim of the petitioner and also making false allegations against the petitioner. Thereafter, a rejoinder was issued by the petitioner on 18.12.1996. Subsequently, as the first respondent failed to return to matrimonial home and as they were living separately for more than 13 years, the petitioner filed H.M.O.P.No.75 of 2006, seeking divorce and subsequently, due to the compromise arrived at between the parties, the said H.M.O.P.No.75 of 2006 was withdrawn by the petitioner/husband. Since the respondent failed to come back to matrimonial home even afterwards, the present petition in H.M.O.P.No.309 of 2008 is filed by the petitioner/husband, seeking divorce.

4.On the other hand, opposing the petition, the respondent filed her counter statement and contends that during the pendency of earlier H.M.O.P.No.75 of 2006, she filed a maintenance petition in I.A.No.397 of 2006 and in order to avoid payment of maintenance amount of nearly Rs.2,00,000/-, the petitioner herein filed a memo on 12.06.2008 without stating any reason and voluntarily withdrew the said H.M.O.P.No.75 of 2006. After withdrawing the petition, the petitioner failed to take any steps to get back the respondent and her son to matrimonial home, but has not come forward with the present H.M.O.P.No.309 of 2008, seeking divorce on false grounds. The first respondent states that her son was born on 09.08.1993 and she is in custody of her son, as per orders passed in G.W.O.P.No.33 of 2001 by the Principal Sub-Court, Erode, on 18.06.2001.

The first respondent contends that she lived happily with the petitioner and it is only the petitioner has forced her to go out of the matrimonial home on false grounds. The first respondent further states that after the birth of her son, she returned to matrimonial home during November 1993 and lived with the petitioner till 01.09.1996. The 1st respondent further states that her husband being a Lawyer has suppressed material facts and even after exchange of notices, he has not come to court immediately. The first respondent states that there was a demand of dowry during the time of wedding and also subsequently by the petitioner and his family.

Even though the dowry demand was fulfilled, to the surprise of first respondent and her parents, the petitioner demanded them to give their consent to marry the younger sister of the first respondent as second wife and the same was strongly opposed by the respondent family. The petitioner also compelled the first respondent to give her consent to marry her sister/second respondent herein and as she was not willing for the same, she was forced to go out of the matrimonial home, during August 1996. According to the first respondent, subsequently on 19.01.1997, the petitioner forcibly took away her sister/2nd respondent herein and married her on 17.01.1997.

the matrimonial home and she did not come out of the matrimonial home on her own and hence, the first respondent seeks dismissal of the petition.

5.The trial court, on the basis of the oral and documentary evidence placed before it, dismissed the petition, holding that the petitioner has not established the claim of desertion alleged against the first respondent/wife.

6.Aggrieved over the same, the petitioner/husband preferred H.M.C.M.A.No.14 of 2012, contending that the trial court has failed to appreciate the materials placed before it properly and dismissed the petition wrongly. Further, the petitioner filed I.A.No.17 of 2015 to grant leave to the petitioner to let in oral evidence to prove his claim. Even though the said petition filed under Order 41 Rule 27 of C.P.C was opposed by the first respondent, the first appellate court considered the same and allowed it on the ground that the petitioner should be given an opportunity to examine himself and also to produce documents to prove his claim and accordingly, remanded the matter back to the trial court for fresh disposal, after setting aside the judgment and decree, dated 06.10.2012, whereby, the petition for divorce was dismissed. 7.

Aggrieved over the said order of the first appellate court remanding the matter to the trial court, the respondent/wife has come forward with this second appeal contending that the plea of the petitioner to permit him to let in oral evidence to prove his claim is belated and the same cannot be entertained and the conclusion of the first appellate court to the contrary is not proper and on that ground, setting aside the finding of the trial court is not correct and the order of remand passed by the first appellate court is unjustified and hence, the appellant/wife seeks to set aside the impugned order of the first appellate court. 8.Heard both the counsels. This court also perused the records carefully.

9.Admittedly, the petitioner filed H.M.O.P.No.309 of 2008, seeking divorce on the ground of desertion and cruelty. The factum of marriage between the petitioner and first respondent is admitted. Similarly, the fact that out of wedlock, they have got a male child and also the first respondent is living separately from the petitioner at her parents home in Erode from 1996 is also admitted. The claim of the petitioner is that after the birth of the male child, the first respondent did not come back to matrimonial home and she has voluntarily gone away without any reason and the same will amount to desertion causing mental cruelty to the petitioner/husband herein. Denying the same, the first respondent contends that after the birth of the male child, she lived with the husband for nearly 41⁄2 years and only due to the fact that the petitioner forcibly married the first respondent's younger sister viz., Banureka/ the second respondent herein, even during the

subsistence of first marriage, the first respondent was forced to go out of the matrimonial home. The first respondent further contends that in such circumstances, it is for the petitioner to prove the fact of desertion by the first respondent and there is no material to prove the same. It is true that the first respondent, who deposed as R.W.1, admitted in her cross-examination that she is living away from the petitioner for the last 14 years, but, she has also categorically stated that she never left the matrimonial home on her own and she was forced to go out of the house by the petitioner only. She also stated in her re-examination that the petitioner married her sister/second respondent herein and due to that, she is living at Erode for the past 14 years. In her evidence, the first respondent also stated that, she is prepared to live with the petitioner even now. It is therefore clear that as rightly pointed out by the learned counsel for the respondent/wife that the burden is on the petitioner to prove that his wife deserted the matrimonial home voluntarily on her own.

10.The learned counsel for the respondent/wife also relied upon the ruling of this Court, reported in 2013 (3) CTC 858 (D.Gopalakrishnan Vs.A.Sathyabhama) to contend that when the petitioner has married the second respondent as second wife, even during the subsistence of his first marriage, his claim that the first respondent/wife left the matrimonial house on her own cannot be accepted, in view of the conduct of the petitioner/husband herein. In the said judgment, this Court has categorically held as follows:

"15.Though different versions were spoken to by both the parties for the wife leaving the matrimonial home on 25.09.2000, considering the over-all picture, in my opinion, the wife must have left the matrimonial home only due to the behaviour and illtreatment of the appellant/husband. Though, it was alleged in the petition by the appellant that the relationship was smooth till 1994 and thereafter, there was a change in the attitude of the wife and she became suspicious and she was adamant and started ill-treating the husband, no woman would leave the matrimonial home with her daughter, if she was not ill-treated by the husband.

When the husband pleaded that the wife became suspicious and the wife came out the allegation that the husband was having illicit relationship with another woman, the complaint of the wife that the husband was having illicit relationship with another woman was more probable than the allegation of the husband that she left the matrimonial home without any reasonable cause." 11.

own wrong. In support of his contention, the learned counsel for the petitioner also relied upon the ruling of the Honourable Supreme Court, reported in 2013 (3) CTC 120 (Ashok Kumar Jain Vs Sumati Jain), wherein, the Apex Court has held as follows: "14.In the present case, both the courts noticed the relevant facts and came to a definite conclusion that the appellant has not only been cruel to the respondent, but has also brought the situation to the point where the respondent had no option but to leave the matrimonial home. In this situation as the appellant was trying to take advantage of his own wrong, the courts disallowed the relief as was sought for. We find that the order to that effect of the High Court does not suffer any infirmity, illegality or perversity; no interference is called for."

12.Relying upon the above said rulings, the learned counsel for the first respondent/wife, contended that the petitioner alone is responsible for forcing the first respondent to go out of the matrimonial home and as such, he cannot be permitted to take advantage of his own wrong and the plea of the petitioner for divorce cannot be entertained.

13.It is further contended by the first respondent/wife that during trial, she examined herself as R.W.1 and two other witnesses on her side, but the petitioner/husband failed to examine himself or any other witness on his side and as such, the trial court is justified in holding that the petitioner failed to establish his claim. The first respondent also pointed out that before the trial court, she filed I.A.No.66 of 2012, seeking permission to examine the petitioner as well as the second respondent in the H.M.O.P as court witnesses and the same was opposed by the petitioner/husband by filing counter and finally the said I.A.No.66/2012 was dismissed by the trial court as per the order dated 02.07.2012.

Thus, the respondent contends that the petitioner without any reason failed to adduce oral and documentary evidence to prove his claim before the trial court and the steps taken by her to examine the petitioner/husband as court witness was also negatived. In such circumstances, the respondent/wife contends that the petitioner is not entitled to seek permission to adduce oral and documentary evidence in the appellate stage under Order 41 Rule 27 of C.P.C and as such, the order passed by the first appellate court in allowing I.A.No.17 of 2015 filed by the petitioner/husband, seeking permission to let in oral evidence to prove his case is improper and the same is liable to be set aside. 14.

arrive at just and proper conclusion and no leave can be granted otherwise under Order 41 Rule 27 C.P.C. In support of the same, the learned counsel for the respondent relied upon the ruling of the Apex Court reported in 2011 (1) CTC 122 (Malayalam Plantations Limited Vs. State of Kerala & Another), wherein, the Apex Court has held as follows:

"11.If any petition is filed under Order 41, Rule 27, in an Appeal, it is incumbent on the part of the Appellate Court to consider at the time hearing the Appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the Trial court has illegally refused the evidence although it ought to have been permitted; (b)whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; © whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case."

15.The learned counsel for the respondent also contended that the first appellate court, without looking into the merits of the case, merely on the basis of the order passed in the interim application in I.A.No.17 of 2015 has remanded the matter and the said order of remand is unsustainable and in support of the same, he relied upon the ruling of this Court, reported in 2011 (1) CTC 239 (M.Mai and another Vs. Cuddalore Municipality, rep. by its Commissioner, Cuddalore), wherein, this Court has held as follows: "23.Thus, the question of remand, in all circumstances, would have to be exercised with caution, subject only if and when the evidence on material are not sufficient enough to enable the Court to come to a decision on an issue.

The sufficiency of the evidence has to be understood in the context of the difficulty in reaching a decision on the basis of t he existing evidence satisfactorily to the mind of the court delivering it. Hence, unless and until the Appellate court undertakes the exercise of considering the judgment of the Trial Court, the decision of an Appellate Court to receive additional evidence and thereby remand the case even before the stage of looking into the decision, would be a case of putting the cart before the horse. Dealing with Section 107(d) and order 41, Rule 27 of C.P.

reported in Mahavir Singh and others V. Naresh Chandra and another, 2001 (1) SCC 309, the Apex Court pointed out that the parties are not, as a matter of right, entitled to the admission of additional evidence and it is purely a matter of discretion which has to be exercised judiciously and sparingly. Hence, the stage at which such an exercise would arise, certainly, demands consideration of the Court that even before the decision of the Trial Court is tested, the Appellate Court cannot decide on the merits of the I.A to receive the additional evidence to order a remand. Going by the law declared by the Apex Court, in the decision reported in Kannathal and 4 others V.

Arulmighu Kanniammal Karuppasamy Thirukoil, 2007 (2) CTC 49 relied on by the learned Senior Counsel, unless the Appellate Court has considered the judgment of the Trial Court on merits so as to form a view as to the necessity of admitting additional evidence, the decision to remand the matter back on receipt of an I.A as a matter of course by hearing the party seeking the direction to file the additional evidence, would be in violation of Order 41, Rules 23 & 23-A of C.P.C and hence, liable to be set aside."

Thus, the learned counsel for the first respondent contends that the impugned order of the first Appellate Court is liable to be set aside.

16.On the other hand, the learned counsel for the petitioner/husband contends that the first appellate court is justified in remanding the matter, as it found necessary to get further evidence to ascertain the claim of the petitioner and in such circumstances, entertaining the petition under Order 41 Rule 27 C.P.C is proper and the order passed by the first appellate court is justified and it needs no interference. The learned counsel for the petitioner also contended that in view of the clear admission of the respondent/wife that she is living separately for more than 14 years, the marriage has irretrievably broken down and in such circumstances, the petitioner is entitled for the relief of divorce and hence, seeks dismissal of the appeal.

17.In the case on hand, the first appellate court has remanded the matter back to the trial court by entertaining I.A.No.17 of 2015 under Order 41 Rule 27 of C.P.C, directing the trial court to permit the petitioner/husband to let in oral and documentary evidence to prove his claim. However, the first appellate court has not considered the case on hand on merits in other aspects. As stated above, the petitioner did not exercise the option to examine himself or any other witness on his side to prove his claim of desertion by the first respondent without any cause or reason and no documentary evidence was also produced. Further, the steps taken by the first respondent/wife to examine the petitioner

and his alleged second wife/2nd respondent herein as court witness was also negatived by the trial court. In such circumstances, it cannot be stated that the evidence now sought to be adduced by the petitioner was not available or he was not given an opportunity to examine himself or anybody else on his behalf as a witness before the trial court. It is clear from the finding of the trial court that the claim of the petitioner about the desertion has not been established by him and now only to overcome the same and to fill up the lacuna on his side, the petitioner has come forward with the petition in I.A.No.17 of 2015 seeking to permit him to let in oral and documentary evidence on his side.

This according to the respondent/wife is not permissible, as it will amount to filling up the lacuna and also the weak points in the case of the petitioner. Admittedly, the three grounds mentioned in the above said ruling relied upon by the respondent/wife under which the additional evidence can be entertained is not available to the petitioner in the case on hand. In the affidavit filed by the petitioner in support of I.A.No.17 of 2015, he has only stated as follows: "4.I am advised to let in oral evidence to prove my case and thus, I pray to grant leave for me to let in oral evidence otherwise I will be put to great hardship. The respondent/respondent may not and cannot have any valid objections for the same."

18.It is therefore clear that the petitioner has not stated any valid and acceptable reason to enable him to let in evidence as sought for by him. In the impugned judgment of the first appellate court also it is observed that the petitioner has miserably failed to adduce oral and documentary evidence before the trial court to prove the facts alleged by him. The first appellate court also observed in its judgment that the trial court has specifically recorded the non-examination of the petitioner as a witness to prove the ground for divorce and the same was the ground for the petition to be dismissed. The first appellate court has also observed in its judgment that the trial court has dismissed the petition, on the basis of the evidence adduced by the first respondent without elaborately discussing about the other facts.

In such circumstances, the first appellate court has concluded that the petitioner has to be given an opportunity to adduce oral and documentary evidence to prove the alleged ground of cruelty and desertion against the respondent. Hence, the first appellate court has entertained the petition in I.A.No.17 of 2015 and set aside the order of the trial court with a direction to permit the petitioner to adduce evidence before the trial court. It is therefore clear that the petitioner/husband, who failed to adduce any evidence before the trial court has not made out any case under Order 41 Rule 27 of C.P.C to permit him to let in oral and documentary evidence at appellate stage and the finding of the first appellate court to entertain the prayer of the petitioner under Order 41 Rule 27 of C.P.

in I.A.No.17 of 2015 is liable to be set aside. As stated earlier, the first appellate court has remanded the matter back to the trial court only for the purpose of recording the evidence on the petitioner's side, pursuant to the order passed in I.A.No.17 of 2015, without discussing about the merits of the case in any other manner. Since the same is not permissible, I.A.No.17 of 2015 is to be dismissed and the order of remand passed by the first appellate court is liable to be set aside. However, as the first appellate court has not discussed the case on merits and given any finding except entertaining the petition in I.A.No.17 of 2015, this Court is of the view that in view of the conclusion arrived at above, I.A.No.17 of 2015 is to be dismissed. In such circumstances, it will be just and proper to set aside the impugned judgment of the first appellate court and remand the matter back to the first appellate court to dispose of the appeal on merits on the basis of available records without any need for recording of further additional evidence.

19.The points are answered accordingly.

20.In the result, this Civil Miscellaneous Second Appeal is allowed and the impugned order of the first appellate court is set aside and the matter is remanded back to the first appellate court for fresh disposal on merits. The first appellate court is directed to dispose of H.M.C.M.A.No.14 of 2012 on the basis of available materials, within a period of three months from the date of receipt of order copy. Consequently, connected miscellaneous petitions are closed. No costs.

Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To

1. V Additional District Judge, Madurai.

2. III Additional Subordinate Judge, Madurai.

+1cc to M/S.M.Ponniah, Advocate SR.No. 83684 +1cc to M/S.V.P.Rajan, Advocate SR.No. 83889 C.M.SA.(MD).No.36 of 2015 26.10.2017 vs JM/SKN RSK/SAR 1/16.11.2017/9P/5C