(Prayer: Civil Miscellaneous Appeal filed under Section 19 (1) of the Family Courts Act, 1984, against the order, dated 31.01.2020 made in HMOP No.111 of 2014 on the file of the Family Court, Virudhunagar District at Srivilliputtur and allow this Civil Miscellaneous Appeal.)

R. Poornima, J.

1. This Civil Miscellaneous Appeal is filed against the order and decretal order dated 31.01.2020 made in HMOP No.111 of 2014 on the file of the Family Court, Virudhunagar District at Srivilliputtur.

2. Brief case of the petition before the lower Court is as follows:

                   (i) The appellant / respondent is the wife and the respondent/petitioner is the husband. The marriage between the petitioner and the respondent was solemnized, on 25.06.2004 at Sivakasi Sri Karukkuvel Ayyanar Kovil Thirumana Mandapam, according to Hindu Customs and Rites. After marriage, the couple resided in the matrimonial home of the petitioner as a joint family.

                   (ii) Immediately after the marriage, the respondent had a quarrel with the petitioner. The respondent insisted for separate residence and she also quarrel with her mother-in-law and father-in-law by using abusive words.

                   (iii) Within a month of marriage, the petitioner aware of the respondent's cruel nature, separated from his parents and lived separately in Sivakasi. Even while living separately, the respondent abused and physically assaulted the petitioner and spoke to him in humiliating words.

                   (iv) The petitioner, therefore, went to Asilapuram, and lived in a house there, working in a mill. However, the respondent's cruelty continued to increase day-by-day. The respondent's father would take her to their home once in every ten days. Despite facing many hardships, the petitioner tried to reconcile and went to the respondent's native place, complained to the elders and brought the respondent back to Asilapuram.

                   (v) When the petitioner's father, who was then working as a Deputy Collector, came to visit his son at Asilapuram, the respondent quarrel and beaten up and caused injury to him. Unable to bear the humiliation, the petitioner's father became bedridden and died.

                   (vi) The respondent had threatened to poison and kill the petitioner several times. Therefore, the petitioner filed a divorce case in HMOP. No.108 of 2007 on the file of the Family Court, from the respondent. The respondent filed a petition in I.A.No.15 of 2008 seeking interim maintenance to conduct the case, which was ordered by the Family Court. However, the petitioner was unable to pay the amount as he was a daily wage earner, and the case was stayed.

                   (vii) During pendency of the case, the respondent went to Sivakasi and entered into the petitioner's house, beat him, and dragged him to the middle of the road, which caused great mental distress to the petitioner. The petitioner complained to the Deputy Superintendent of Police, Sivakasi, who warned them. The respondent also filed a maintenance petition before the Chief Judicial Magistrate Court, Srivilliputhur, seeking monthly maintenance, and the Court directed the petitioner to pay a sum of Rs. 2,500/- per month to the respondent.

                   (viii) The respondent's actions have made it impossible for the petitioner to live with her. Therefore, it is clear that the petitioner and respondent cannot live together. They are living separately for the past 8 years.

3. Since, there was no possibility of reunion, the petitioner/husband has filed a petition for divorce in HMOP No.111 of 2014 on the file of the Family Court, Virudhunagar District, on the ground of cruelty and desertion. In the said proceedings, the respondent entered appearance and filed counter denying all the allegations in the divorce petition as false and baseless.

4. On the side of the petitioner/husband, one witness was examined as PW1 and three documents were marked as Ex.P1 to Ex.P3. On the side of the respondent/wife one witness was examined as RW1 and three documents were marked as Ex.R1 to Ex.R3.

5. After hearing both sides, the learned Family Court Judge, considering the pleadings, oral and documentary evidence and arguments of the learned counsel for the parties, held that the petitioner/husband has proved that the respondent/wife caused mental cruelty and allowed the petition, on 31.01.2020.

6. Challenging the said order of divorce passed by the Family Court, the appellant/wife has filed this present Civil Miscellaneous Appeal with the following among other grounds:

                   (i) That the trial Court has failed to see that the burden of proof is on the petitioner/husband to prove the cruelty and desertion on the part of the wife and he has miserably failed to prove the same and hence, he is not entitled to the decree for divorce.

                   (ii) That the trial Court ought to have held that unsubstantiated and false acts of cruelty alleged by the husband cannot be a ground to grant divorce in his favour.

                   (iii) That the trial Court has failed to see that the husband is guilty of cruelty and he has committed desertion also.

                   (iv) That the Court below ought to have drawn an adverse inference against the husband for his failure to examine any independent witness on his side under Section 114(g) of Indian Evidence Act, 1872.

                   (v) That the Court below ought to have seen that there is absolutely no evidence apart from the interested testimony of the husband that the wife scolded him with cruel words and caused mental agony to the husband.

7. Heard the learned counsel appearing on either side and perused the materials available on record.

8. Now, this Court has to decide whether the order of the Trial Court is sustainable or liable to be set aside?

9. Point :

The respondent/petitioner/husband filed a petition in HMOP. No. 111 of 2014, against the appellant/respondent/wife for dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(ia) (ib) of the Hindu Marriage Act, 1955.

10. The wife, who is the appellant herein disputed the allegation of cruelty and desertion, by contending that, in the matrimonial home, she was subjected to harassment of dowry by her in-laws and further her mother-in-law did not permit the spouse to live together. She further alleged that she was driven out of the matrimonial home, and therefore, she is residing with her parental home, however, she has always been ready and willing to live with her husband

11. On the side of the petitioner, the husband was examined as P.W.1 and the marriage invitation, joint photograph of husband and wife and the certified copy of the divorce petition filed by him were marked as Ex.P1 to Ex.P3. On the side of the respondent, the wife was examined as R.W.1 and produced a telephonic conversation held between the husband and wife. The conversation between the spouses revealed that the main problem between them was the interference of her mother- in-law who objected the husband visiting the wife. It further revealed that during the pendency of the divorce petition both the spouses met with each other and jointly visited a temple. During the conversation, the husband insisted that the wife should not disclose their joint visit to her advocate or anyone else. He further compelled her not to express her willingness before the Court to join him. However, the wife stated that she would express her willingness to join him.

12. According to the husband, soon after the marriage, at the insistence of his wife, he started living in a separate house at Sivakasi. However, during cross-examination, he admitted that his father had started a petty shop in Sivakasi for his livelihood and that both spouses had been living in Sivakasi for more than a year happily without any problem. He further admitted that as there was no gainful profit in the business, he started working, in Subbaraj Mill. The respondent/wife was also working in the same mill along with him and supported him financially, thereafter they shifted to their matrimonial house. He further admitted that until that time they were living together, harmoniously without any dispute. The problem occurred only when they started living in his own house.

13. Further, the husband admitted that his younger brother was given more dowry and Sridhana than his wife, and that a quarrel arose between, his wife and his mother in this regard. In support of the allegation of dowry harassment, it is noted that the wife lodged a dowry harassment complaint against the husband and other family members, pursuant to which the husband and his mother were convicted and sentenced to three years imprisonment. The counsel who appeared on behalf of the husband contended that the husband and his mother filed an appeal against the conviction and the same was allowed.

14. Therefore, the allegation made by the husband for divorce that the wife created problems with him, assaulted him and treated him with cruelty was not established. On the contrary, it was established that both were living together harmoniously and that the dispute arose only due to dowry harassment and the interference of the mother of the husband.

15. Though the petitioner/husband made several grave allegations against the respondent/wife, he failed to produce any oral or documentary evidence to substantiate the same. According to the husband, the wife filed the dowry harassment case, after filing of the divorce petition by him, however the wife denied the same and asserted that she lodged the criminal case against the husband even before the filing of the divorce petition. Anyhow, it now stands proved that the husband was convicted in the criminal case. Further, it is also proven that the husband filed a divorce petition on the same grounds of cruelty and desertion, but failed to comply with the order of the Court, by paying the maintenance amount as directed by the Court of law. If he was genuinely interested in continuing to marital relationship, he ought to have filed a petition for restitution of conjugal rights. Instead, he filed a petition for dissolution of marriage which came to be dismissed for non-compliance with the Court. Thereafter, he again filed the present petition for dissolution of marriage on the same ground, which is not maintainable, as he did not take any steps to set aside the earlier order. He ought to have filed an appeal against the earlier order. The second petition seeking the same relief is therefore not maintainable.

16. It is further brought to the notice that soon after, the decree of divorce was granted by the family Court, he contracted a second marriage, and is living with his spouse separately.

17. This Court, after considering the entire record finds that, both spouses have been living separately for more than 13 years. It is further noted that the wife filed a criminal case against the husband in which he was convicted. At present the husband is married for the second time and living separately with his second wife. In view of the change in circumstances, even if the appeal is allowed, there is no possibility of reunion between the parties. However, the appellant/wife requires maintenance to support herself for the remainder period of her life. It has not been proved that she has sufficient means to lead her life. Therefore, this Court is of the view that the ends of justice should be met by confirming the decree of divorce suitably safeguarding the wife’s right to claim maintenance. Point is answered accordingly.

18. Accordingly, the order dated 31.01.2020 passed in HMOP No.111 of 2014 on the file of the Family Court, Virudhunagar District at Srivilliputtur, is confirmed subject to the condition that the respondent/ husband shall pay a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) towards permanent alimony to the appellant/wife within a period of six months from the date of receipt of a copy of this order. In case of any default, the appellant/wife is at liberty to initiate appropriate proceedings by initiating an execution petition against the respondent/husband.

19. With the above direction, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.