2026:MHC:1807C.M.S.A(MD)No.44 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 05.02.2026

Pronounced on : 01.06.2026

CORAM:

THE HONOURABLE MR.JUSTICE P.VADAMALAI

C.M.S.A(MD)No.44 of 2021

Valliammal,

W/o.Chelladurai,

D.No.6/220, Sivalarkulam Vilakku Salai,

Tirunelveli Main Road, Sivalarkulam,

Alankulam Taluk,

Tirunelveli District. ...Appellant/Appellant/Respondent

Vs.

A.Chelladurai,

S/o.Late.Arunachala Konar,

D.No.3B, Rejina Street,

Ismail Nagar B Division,

K.T.C Nagar, Palayamkottai Taluk,

Tirunelveli District. ...Respondent/Respondent/Petitioner

PRAYER: Civil Miscellaneous Second Appeal is filed under Section 28 of

the Hindu Marriage Act r/w Section 100 of CPC.,to set aside the decree and

judgment passed in CMA.No.53 of 2018 by the Additional District and

Sessions Judge/Fast Track Court, Tenkasi, dated 04.09.2019 confirming the

decree and judgment of divorce passed in HMOP.No.157 of 2014 by the

Principal Sub Court, Tenkasi, dated 04.12.2017, and dismiss the above

HMOP.No.157 of 2014 on the file of the Principal Sub Court, Tenkasi.

For Appellant: Mr.S.Ramesh@Ramiah

For Respondent: Mr.M.P.Senthil

for Mr.A.Mohamed Haneef

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JUDGMENT

This Civil Miscellaneous Second Appeal is preferred against the

judgment and decree, dated 04.09.2019 passed in C.M.A.No.53 of 2018 on

the file of the Additional District and Sessions Judge/Fast Track Court,

Tenkasi, confirming the judgment and decree, dated 04.12.2017 passed in

H.M.O.P.No.157 of 2014 on the file of the Principal Subordinate Court,

Tenkasi.

2.The appellant is the respondent/wife in H.M.O.P.No.157 of 2014 on

the file of the Principal Subordinate Court, Tenkasi.

3.For the sake of convenience, the parties are referred to as petitioner

and respondent in H.M.O.P.No.157 of 2014 on the file of the Principal

Subordinate Court, Tenkasi.

4.Brief facts of the case of the petitioner (Husband):

The petitioner and the respondent are husband and wife.

Their marriage was solemnized on 30.08.1977 as per Hindu Rites and

Customs. Out of wedlock, they were blessed with a son, Premkumar (age 36)

and a daughter, Smitha (age 33). From the very beginning of marriage, upon

suspicion, the respondent frequently quarreled with the petitioner as if he had

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illegal contacts with several women and made an insult in the presence of the

general public. The petitioner was working in the Army, and the respondent

wrote a letter to higher officials on 19.09.1989 mentioning abusive versions

against the petitioner. The respondent, through her son, lodged a police

complaint and the same was registered in Crime No.333 of 1997 by

Alangulam Police Station, and the case was taken on cognizance in

C.C.No.388 of 1998 by the Principal Assistant Sessions Court, Tenkasi.

In that case, the petitioner was convicted for 7 years and on appeal, the

sentence was reduced. Thereafter, the petitioner has been living separately.

In order to grab the self-acquired properties of the petitioner, the respondent

created concocted documents, for which a criminal case in C.C.No.347 of

2009 is pending against the respondent. The respondent converted to

Christianity and adopted Christian rites, and thereby causing mental agony to

the petitioner. By these acts, the respondent caused mental cruelty and she

deserted the petitioner. There is no possibility of reunion. Hence, the

petitioner has filed a petition in HMOP.No.157 of 2014 against the

respondent seeking divorce U/s.13(1)(ia)(ib), (ii) of the Hindu Marriage Act.

5.Brief facts of the case of the respondent (Wife):

The petitioner was working in the Indian Army at Allahabad.

After marriage, the petitioner took the respondent to Allahabad, where she

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became pregnant. The respondent came to her parental home for delivery.

The petitioner used to visit her parental home, where he developed an illegal

contact with one girl, Muthukutti. On enquiry, the petitioner admitted the said

relationship even before marriage, however, the respondent continued

matrimonial life. Their matrimonial life continued on good terms till 1985.

Then, the petitioner harassed the respondent to give her sister in marriage to

him. So, the respondent wrote a letter to the higher officials of the petitioner.

The petitioner retired in 1991 and started living with the respondent at their

hometown, Sivalarkulam. Thereafter, he developed illegal intimacy with one

Maragatham. While questioning the same, on 02.12.1996, the petitioner

confined the respondent and her children inside the house and set it on fire.

So, the respondent gave a complaint before the Alangulam police station.

Again, the petitioner had illegal contact with another woman, Poornam and

started living with her and harassed the respondent to give consent for

marrying the said Poornam. As the respondent refused, the petitioner

quarreled with her and cut her right thumb, hence, the respondent’s son

Premkumar gave a complaint and a case in Crime No.333 of 1997 was

registered and after trial, the Assistant Sessions Court found the petitioner

guilty and convicted him. Now, the petitioner is living with Poornam Ammal

at KTC Nagar. Hence, there is no atmosphere for the respondent to live with

the petitioner. The petitioner filed a suit in O.S.No.227 of 2008 for a

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declaration that the properties are his absolute properties. The respondent

filed a suit in O.S.No.445 of 2008 for partition. The suit filed by the

respondent was decreed and the petitioner’s suit was dismissed.

The respondent never converted to Christianity. Only to prevent the

respondent from getting the retirement benefits of the petitioner, the

petitioner has filed this petition with bad intentions. Hence, this petition is

liable to be dismissed.

6.Before the Trial Court, the petitioner examined himself as P.W.1 and

examined one Nellaiyappan as P.W.2 and marked two exhibits as Ex.P.1 and

Ex.P.2. The respondent has examined herself as R.W.1 and marked one

exhibit as Ex.R.1.

7.After hearing both sides and after considering both sides evidence,

the learned Additional Subordinate Judge, Tenkasi allowed the petition in

H.M.O.P.No.157 of 2014, granting divorce by passing an order, dated

04.12.2017.

8.Aggrieved by the said judgment and decree, the respondent has

preferred the Civil Miscellaneous Appeal in H.M.C.M.A.No.53 of 2018

before the Additional District and Sessions Court (Fast Track Court), Tenkasi.

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The first Appellate Court, after hearing both sides and after considering the

material records, passed judgment and decree, dated 04.09.2019, dismissing

the Civil Miscellaneous Appeal and confirming the judgment and decree,

dated 04.12.2017, passed in HMOP.No.157 of 2014.

9.Challenging the judgment and decree of the First Appellate Court, the

respondent has preferred this Civil Miscellaneous Second Appeal and the

same has been admitted on the following substantial questions of law:-

i) Whether the Courts below are correct in

finding that the wife is guilty of cruelty and whether

the finding is correct and justified?

ii) Whether the Courts below are correct in

granting a decree of divorce without testing the grant

of relief under Section 23(1) of the Hindu Marriage

Act and whether the same is against law and

unsustainable?

10.Heard both sides and perused the records in this Civil

Miscellaneous Second Appeal.

11.The learned counsel for the appellant, hereinafter referred as the

respondent/wife, has argued that the petitioner/husband has sought divorce

against the respondent/wife on the grounds of cruelty, desertion, conversion

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of religion and long separation. The ground of desertion was declined by the

Courts below. The petitioner/husband claimed cruelty for the reason that the

respondent/wife wrote a letter to the higher officials of the petitioner/husband

in the Army, alleging that the petitioner has illegal contacts with some other

women. The alleged letter was sent in the year 1989 and there was no legal

action taken by the petitioner/husband against the respondent/wife at the

relevant point of time. Thereafter, the petitioner/husband retired in 1991.

After retirement, the petitioner/husband and the respondent/wife started

living jointly at Sivalarkulam. So, the cruelty was deemed to be condoned.

The petitioner filed this petition for divorce in 2014, tracing the cause of

action that took place in 1989, which was already condoned by the petitioner

as both lived jointly after retirement from 1991. As per Section 23(1)(b) of

the Hindu Marriage Act, it is clear that past incidents which have been

condoned cannot be reversed and that there should not be any improper delay.

The incidents alleged should be of a recurring or continuing nature and

should occur in near proximity to filing the petition. The petition for divorce

was filed in 2014 with enormous delay, which is a bar on the petitioner from

seeking to invoke action on an incident that took place in 1989.

12.The learned counsel for the appellant further argued that another

reason for cruelty is the institution of criminal cases. The criminal cases came

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to be filed only on the acts of the petitioner/husband who inflicted grievous

injuries on the respondent/wife and cut one of her finger in right hand.

Moreover, the petitioner/husband confined the respondent/wife and her

children inside the house and set it on fire. Hence, both the criminal cases

came to be lodged only upon the acts of the petitioner/husband.

The respondent/wife and her son have not lodged a false complaint on their

own. The respondent/wife has taken recourse to law to exercise her legal

right, which cannot be construed as a ground for cruelty. The institution of

civil suits by both parties will not be termed as cruelty. Therefore, as per

provision of Section 23(1) of the Hindu Marriage Act, the petitioner/husband

is not entitled for divorce as past incidents were condoned and the same

cannot be reverted back and also the respondent/wife took recourse to law to

exercise her legal right.

13.The learned counsel for the appellant further argued that the

petitioner/husband alleged that the respondent/wife converted herself to

Christianity. For the conversion to the Christian religion, it requires certain

ceremonies and Baptism. The petitioner/husband has not produced any of the

records to show the respondent/wife’s conversion. No competent person or

any other person was examined to prove the same. The petitioner has filed

only Ex.P.1 - Birth Certificate of grandson through his daughter and that

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certificate will not hold any bearing. The last ground is a long separation,

which is not a ground for divorce under the Hindu Marriage Act. The Hon’ble

Supreme Court has clearly clarified and held that the trial Courts and the

High Courts have no power to grant divorce on the ground of irretrievable

break down of marriage and the same has been a ground for divorce only

under the special powers of the Supreme Court only under Article 142 of the

Constitution, considering the peculiar circumstances of cases. The Courts

below erred in granting a divorce and the same has to be set aside. Therefore,

this appeal may be allowed.

14.In support of his argument, the learned counsel for the

respondent/wife, appellant herein has relied on the following citations:

(1) (2017) 4 Supreme Court Cases 85 in the case of “Suman

Singh /v/ Sanjay Singh” in paragraph Nos.14 and 15 it is held as follows:

''14.This we hold for more than one reason.

First, almost all the grounds taken by the

respondent in his petition were stale or/and isolated

and did not subsist to enable the respondent to seek

a decree for dissolution of marriage. In other words,

the incidents of cruelty alleged had taken place

even, according to the respondent, immediately after

marriage. They were solitary incidents relating to

the behavior of the appellant. Second, assuming that

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one or more grounds constituted an act of cruelty,

yet we find that the acts complained of were

condoned by the parties due to their subsequent

conduct inasmuch as admittedly both lived together

till 2006 and the appellant gave birth to their

second daughter in 2006. Third, most of the

incidents of alleged cruelty pertained to the period

prior to 2006 and some were alleged to have

occurred after 2006. Those pertained to period after

2006 were founded on general allegations with no

details pleaded such as when such incident

occurred (year, month, date etc.), what was its

background, who witnessed, what the appellant

actually said etc.

15. In our view, the incidents which occurred

prior to 2006 could not be relied on to prove the

instances of cruelty because they were deemed to

have been condoned by the acts of the parties.

So far as the instances alleged after 2006 were

concerned, they being isolated instances, did not

constitute an act of cruelty.

(2) 2023 SCC Online Del 4369 in the case of ‘Nidhi Jain /v/ Ankit

Jain” it is held in paragraph No.41 as follows:

''41.Irretrievable breakdown of marriage is

not a ground in the Hindu Marriage Act for grant

of divorce. The Supreme Court in Shilpa Sailesh v.

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Varun Sreenivasan, has held that in exercise of

power under Article 142 (1) of the Constitution of

India, it has the discretion to dissolve the marriage

on the ground of its irretrievable breakdown,

supplementing that such discretionary power is to

be exercised to do ‘complete justice’ to the parties,

wherein it is satisfied that the facts established

shows that the marriage has completely failed and

there is no possibility that the parties will cohabit

together, and continuation of the formal legal

relationship is unjustified. However, such a power

akin to Article 142 of the Constitution of India has

not been conferred on the High Courts.

(3) (2009) 6 Supreme Court Cases 379 in the case of “Vishnu Dutt

Sharma /v/ Manju Sharma” wherein it is held in paragraph Nos.10, 11,

12 and 13 as follows:

''10.On a bare reading of Section 13 of the

Act, reproduced above, it is crystal clear that no

such ground of irretrievable breakdown of the

marriage is provided by the legislature for granting

a decree of divorce. This Court cannot add such a

ground to Section 13 of the Act as that would be

amending the Act, which is a function of the

legislature.

11.Learned counsel for the appellant has

stated that this Court in some cases has dissolved a

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marriage on the ground of irretrievable

breakdown. In our opinion, those cases have not

taken into consideration the legal position which

we have mentioned above, and hence they are not

precedents. A mere direction of the Court without

considering the legal position is not a precedent.

12.If we grant divorce on the ground of

irretrievable breakdown, then we shall by judicial

verdict be adding a clause to Section 13 of the Act

to the effect that irretrievable breakdown of the

marriage is also a ground for divorce. In our

opinion, this can only be done by the legislature

and not by the Court. It is for the Parliament to

enact or amend the law and not for the Courts.

Hence, we do not find force in the submission of the

learned counsel for the appellant.

13.Had both parties been willing we could,

of course, have granted a divorce by mutual

consent as contemplated by Section 13B of the Act,

but in this case the respondent is not willing to

agree to a divorce.''

(4) (2009) 10 Supreme Court Cases 415 in the case of ‘Anil Kumar

Jain /v/ Maya Jain” wherein it is held in paragraph Nos.29 and 30 as

follows:

''29.In the ultimate analysis the aforesaid

discussion throws up two propositions. The first

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proposition is that although irretrievable

break-down of marriage is not one of the grounds

indicated whether under Sections 13 or 13-B of the

Hindu Marriage Act, 1955, for grant of divorce, the

said doctrine can be applied to a proceeding under

either of the said two provisions only where the

proceedings are before the Supreme Court.

In exercise of its extraordinary powers under

Article 142 of the Constitution the Supreme Court

can grant relief to the parties without even waiting

for the statutory period of six months stipulated in

Section 13-B of the aforesaid Act. This doctrine of

irretrievable break-down of marriage is not

available even to the High Courts which do not

have powers similar to those exercised by the

Supreme Court under Article 142 of the

Constitution. Neither the civil courts nor even the

High Courts can, therefore, pass orders before the

periods prescribed under the relevant provisions of

the Act or on grounds not provided for in Sections

13 and 13-B of the Hindu Marriage Act, 1955.

30. The second proposition is that although

the Supreme Court can, in exercise of its

extraordinary powers under Article 142 of the

Constitution, convert a proceeding under Section

13 of the Hindu Marriage Act, 1955, into one under

Section 13-B and pass a decree for mutual divorce,

without waiting for the statutory period of six

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months, none of the other Courts can exercise such

powers. The other Courts are not competent to pass

a decree for mutual divorce if one of the consenting

parties withdraws his/her consent before the decree

is passed. Under the existing laws, the consent

given by the parties at the time of filing of the joint

petition for divorce by mutual consent has to

subsist till the second stage when the petition

comes up for orders and a decree for divorce is

finally passed and it is only the Supreme Court,

which, in exercise of its extraordinary powers

under Article 142 of the Constitution, can pass

orders to do complete justice to the parties.

15.Per contra, the learned counsel for the respondent hereinafter

referred to as the petitioner/husband has vehemently contended that the

petitioner/husband is an retired army-man, the respondent/wife has been

repeatedly and frequently quarreling with the petitioner/husband alleging that

he has illegal contacts with several ladies and that she sent complaints

regarding the same to the Army higher officials. She made such allegations

in her counter and evidence. This was categorically admitted by the

respondent/wife in her evidence also. Criminal cases were lodged against the

petitioner/husband and the petitioner/husband was convicted and sentenced

to 7 years. Moreover, two civil suits in O.S.Nos.227 of 2008 and 445 of 2008

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were pending between the parties and the second appeals are still pending

before this Court. The respondent/wife has removed the Thali and converted

to the Christian religion. The respondent/wife still does not have Thali and

she admitted the same in her evidence. The respondent/wife has falsely stated

that the petitioner/husband and the respondent/wife are living jointly.

The respondent/wife has clearly stated in her counter that the

petitioner/husband has been living with Poornam Ammal from the year 1997

in Thiruchendur and this was clearly admitted by the respondent/wife in her

counter as well as in her evidence. So, the petitioner/husband and

respondent/wife have been living separately for more than 31 years, and their

children have also got married and are living separately. The respondent/wife

has not taken any steps for joint living, muchless has not filed any petition for

restitution of conjugal rights U/s.9 of the Hindu Marriage Act.

Therefore, there is no possibility of living together, and their marriage has

broke down irretrievably. These facts were correctly appreciated by the

Courts below based on the evidence and correctly granted a divorce.

The Courts below gave concurrent findings and there is no question of law

arising in this appeal. Therefore, the appeal has to be dismissed.

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16.In support of his argument, the learned counsel for the

petitioner/husband/respondent herein has relied on the following citations:

(1)Order in C.M.A.No.2924 of 2017 of

Madras High Court in the case of V.Kasthuri /v/

D.Bharath, dated 09.01.2026.

(2)2009 (3) CTC 15 of Madras High Court in

the case of D.Nagappan /v/ T.Virgin Rani.

(3)Order in C.M.S.A.Nos.21 & 22 of 2023 of

Madurai Bench of Madras High Court in the case of

Kavitha /v/ Senthilkumaran.

(4)(2007) 4 Supreme Court Cases 511 in the

case of Samar Ghosh /v/ Jaya Ghosh

(5)2022 (3) MWN (Civil) 572 of Madras High

Court in the case of C.Sivakuar /v/ A.Srividhya

(6)2021 (1) MWN (Civil) 589 of the Hon’ble

Supreme Court in the case of Joydeep

Majumdar /v/ Bharti Jaiswal Majumdar.

(7)AIR 2023 Supreme Court 4186 in the case

of Roopa Soni /v/ Kamalnarayan Soni

(8)2022 SCC Online Ker. 778 in the case of

Beena M.S. /v/ Shino G.Babu.

17.I have carefully considered the arguments advanced by both sides

and perused the material records of the case. The petitioner/husband sought

divorce against the respondent/wife on the ground of cruelty, alleging that the

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petitioner/husband had illegal contacts with some other women and the same

was conveyed to the higher officials of the petitioner/husband, who was

working in the Indian Army. He further alleged that the respondent/wife

removed her Thali and did not wear any jewels as she had converted religion

from Hindu to Christian. Of course, there is no documentary evidence to

either prove or disprove the same by either side. But a careful perusal of the

evidence of the respondent/wife as R.W.1, clearly shows that she admitted in

her evidence, that she sent complaints to the Army Higher Officials of the

petitioner/husband regarding his alleged illegal contacts with women.

She admitted in her cross as ehd; vd;Dila vjpUiuapy; kDjhuUf;F

“

ehd;F bgz;fSld; bjhlh;g[ ,Ug;gjhf brhy;ypa[s;nsd;. ehd; kDjhuh;

uhZtj;jpy; gzpg[hpe;J te;jnghJ mtUila nky; mjpfhhpfSf;F

g[fhh; mDg;gpapUe;njd; ....”. So, it is very clear that the respondent/wife

admitted that she made a complaint to the Army's Higher officials regarding

the petitioner/husband’s alleged illegal contacts with a woman. It is a settled

position of law that admissions are the best evidence and do not require any

documentary evidence.

18.A perusal of rulings relied on by the petitioner/husband, including

that of the Three Bench of the Hon’ble Supreme Court in its judgment in

Joydeep Majumdar /v/ Bharti Jaiswal Majumdar case reported in 2021

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(1) MWN (Civil) 589 has clearly held in paragraph Nos.11, 12, 13 and 14 are

as follows:

''11.The materials in the present case reveal

that the respondent had made several defamatory

complaints to the appellant’s superiors in the Army

for which, a Court of inquiry was held by the Army

authorities against the appellant. Primarily for those,

the appellant’s career progress got affected.

The Respondent was also making complaints to other

authorities, such as, the State Commission for

Women and has posted defamatory materials on

other platforms. The net outcome of above is that the

appellant’s career and reputation had suffered.

12.When the appellant has suffered adverse

consequences in his life and career on account of the

allegations made by the respondent, the legal

consequences must follow and those cannot be

prevented only because, no Court has determined

that the allegations were false. The High Court

however felt that without any definite finding on the

credibility of the wife’s allegation, the wronged

spouse would be disentitled to relief. This is not

found to be the correct way to deal with the issue.

13.Proceeding with the above understanding,

the question which requires to be answered here is

whether the conduct of the respondent would fall

within the realm of mental cruelty. Here the

allegations are levelled by a highly educated spouse

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and they do have the propensity to irreparably

damage the character and reputation of the

appellant. When the reputation of the spouse is

sullied amongst his colleagues, his superiors and the

society at large, it would be difficult to expect

condonation of such conduct by the affected party.

14.The explanation of the wife that she made those

complaints in order to protect the matrimonial ties

would not in our view, justify the persistent effort

made by her to undermine the dignity and reputation

of the appellant. In circumstances like this, the

wronged party cannot be expected to continue with

the matrimonial relationship and there is enough

justification for him to seek separation.

The respondent/wife has not proved the alleged illegal contact of the

petitioner/husband by adducing evidence. From the above ruling, it is very

clear that when a spouse makes defamatory complaints about the other spouse

to his/her superiors, it is enough justification for seeking divorce legally.

19.At this juncture, the learned counsel for the respondent/wife has

contended that the petitioner/husband retired from the Army and they jointly

lived together, so the petitioner/husband is deemed to have condoned the

above allegations. But on perusal of the evidence, there were subsequent

quarrels between the spouses, resulting in the filing of criminal cases in

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which the petitioner/husband was convicted. The petitioner/husband in his

cross has stated as follows:

.... ehd; 1991k; Mz;L Xa;t[ bgw;Wtpl;nld;.

“

ehd; Xa;t[ bgw;wt[ld; rptyhh; Fsk; vd;w Chpy;

FoapUe;J te;njd;. mq;F ehDk; vd; kidtpa[k;

xd;whf jhd; ,Ue;njhk;. Rptyhh;Fsj;jpy ,Uf;Fk;

nghJ vdf;Fk; kufjk; vd;gtUf;Fk;

bjhlh;g[ ,Ue;jjhf brhy;tJ rhpay;y. nkw;go

gpur;rid fhuzkhf ehd; vd;Dila kidtp> kfd;

kw;Wk; kfis tPl;ow;Fs; itj;J g{l;o jP itj;njd;

vd;W brhd;dhy; rhpay;y. tprhhpj;J g[fhh; js;Sgo

bra;ag;gl;lJ. Vd;Dila kD 5 kw;Wk; 6tJ

ghuhtpy; cly; jPq;F vd;W brhy;ypapUg;gJ vd;

kidtp vd;id bfhd;WtpLthnuh vd;w mh;jj;jppy;

brhy;ypa[s;nsd;. vd;Dila kidtpia mUths;

itj;J btl;oajhy; mtUila fl;iltpuy;

Jz;lhdJ mjd;kPJ vd; kfd; g[fhh; bfhLj;jhh;.

me;j g[fhhpd; nghpy; Fw;w tHf;F gjpt[ bra;ag;ggl;L

vdf;F ePjpkd;wj;jpy; jz;lid tHq;fg;gl;lJ.....

”

From the evidence it shows that after retirement at the time of alleged

joint living, there was a quarrel made by the respondent/wife with the

petitioner/husband regarding the same allegation of illegal contacts, which

means the allegation of illegal contact against the petitioner/husband

continued by the respondent/wife, so the argument advanced by the

respondent/wife’s counsel in respect of condonation of earlier allegations

does not favour the wife. Moreover, the criminal cases came to take place

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upon the respondent/wife’s continued quarrel over the same allegation of

illegal contact with a woman. So, the assistance under Section 23(1) of the

Hindu Marriage Act sought by the respondent/wife’s counsel is unhelpful to

her version.

20.The next ground for divorce is that the respondent/wife has

removed the Thali. It is the evidence of the respondent/wife as R.W.1 that she

clearly admitted that she removed ‘Thali” and does not wear gold ornaments.

So, the allegation of conversion to Christianity by the respondent/wife cannot

be brushed aside, as there is no substance. Regarding removal of Thali, the

Division Bench of this Court has clearly held in Sivakumar’s case 2022 (3)

MWN (Civil) 572 as follows in paragraph Nos.18 & 19.

''18.Hence in the facts and circumstances of

the case and also in view of our finding that the

respondent/wife by her act caused mental cruelty to

the husband, we propose to put a full stop to the

marital tie by granting decree dissolving the

marriage between the petitioner and the respondent

that took place on 10.11.2008.

19.When the respondent/wife was examined as

R.W.1, she admitted that at the time of separation,

she removed her thali chain (Sacred chain worn by

wife as a token of having married). Though she

proceeded to explain that she retained thali and only

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C.M.S.A(MD)No.44 of 2021

removed the chain, the act of removing thali chain

had its own significance. The learned counsel for the

respondent by taking us to ceremonious for Hindu

Marriage referring to Section 7 of Hindu Marriage

Act submitted that tying of thali is not a necessary

one and hence removal of thali by respondent, even

assuming it was true, would not have any impact on

the marital tie. But, it is a matter of common

knowledge that tying of thali is an essential ritual in

marriage ceremony that takes place in this part of the

world. It is useful to refer, the observations of a

coordinate Bench of this Court in Vallabhi Vs.

R.Rajasabahi reported in 2017 (1) MWN (Civil) 128

(DB). The Observations of the Division Bench of this

Court is as follows:

"33. From the materials available on record, it

is also seen that the petitioner has removed the

"Thali" (Mangalsutra) and it is also her own

admission that she has kept the same in Bank locker.

It is known fact that no Hindu married woman would

remove the "Thali" at any point of time during the

lifetime of her husband. "Thali" around the neck of a

wife is a sacred thing which symbolises the

continuance of married life and it is removed only

after the death of Husband. Therefore, the removal of

"Thali" by the petitioner/wife can be said to be an

act, which reflected Mental Cruelty of highest order

as it could have caused agony and hurted the

sentiments of the respondent."

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C.M.S.A(MD)No.44 of 2021

From the above, it is very clear that the respondent/wife adopted

Christianity as her daughter’s name and her marriage to a Christian is

revealed from Ex.P.1 and Ex.P.2 and hence, the allegation of conversion of

religion by the respondent/wife cannot be thrown away upon consideration of

the entire evidence on record. This Court holds that the removal of Thali

would reflect mental cruelty.

21.The next submission of the respondent/wife’s counsel is that the

Courts below and the High Court cannot grant a divorce on the ground that

the marriage has irretrievably broken down and that the same can be granted

only by the Hon’ble Supreme Court under Article 142 of the Constitution.

A perusal of the rulings relied on by the learned counsel for the

respondent/wife reveals that the argument of the respondent/wife's side is

somewhat correct one, but at the same time, it cannot be construed that the

Courts below and the High Court could not consider the fact of the marriage

having irretrievably broken down while seeking divorce on the ground of

cruelty. This Court clearly held in its judgment in C.M.A(MD)Nos.21 & 22 of

2023, dated 28.10.2024, relied on by the petitioner/husband's side, that living

separately for a long period and refusal to sever a strained relationship itself

leads to mental cruelty. The respondent/wife in her evidence clearly admitted

that she is living separately from her husband. She admitted in her evidence

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C.M.S.A(MD)No.44 of 2021

that 1996k; Mz;oypUe;J vd; fztiu gphpe;J thH;e;J tUfpnwd;..

‘ ’

.

The petitioner/husband has now pointed out that the respondent/wife has not

taken any steps for reunion or at least she has not chosen to file a petition for

restitution of conjugal rights U/s.9 of the Hindu Marriage Act. This was not

specifically denied by the respondent/wife side. So, as of now, the

petitioner/husband and the respondent/wife have been separately living for

more than 30 years.

22.The Hon’ble Supreme Court in Rakesh Raman /vs/ Kavita case

reported in AIR 2023 Supreme Court 2144, wherein it is held in paragraph

No.18 as follows:

“18. We have a married couple before us who

have barely stayed together as a couple for four

years and who have now been living separately for

the last 25 years. There is no child out of the

wedlock. The matrimonial bond is completely

broken and is beyond repair. We have no doubt that

this relationship must end as its continuation is

causing cruelty on both the sides. The long

separation and absence of cohabitation and the

complete breakdown of all meaningful bonds and

the existing bitterness between the two has to be

read as cruelty under section 13(1)(ia) of the 1955

Act. We therefore hold that in a given case, such as

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C.M.S.A(MD)No.44 of 2021

the one at hand, where the marital relationship has

broken down irretrievably, where there is a long

separation and absence of cohabitation (as in the

presence case for the last 25 years), with multiple

Court cases between the parties; then continuation

of such a ‘marriage’ would only mean giving

sanction to cruelty which each is inflicting on the

other......”.

Hence, very long separate living without the reason or consent of the

other spouse can also constitute mental cruelty to the other spouse. Thus, the

Courts below have correctly held that the petitioner/husband has established

the ground of cruelty against the respondent/wife.

23.From the above facts and circumstances, the respondent has not

established her case and therefore, the substantial questions of law are

decided against the respondent/appellant herein. This Court is of the

considered view that the case of the petitioner/respondent herein is proved by

him as correctly decided by the Trial Court and confirmed by the first

Appellate Court. The concurrent finding of the Courts below does not

warrant interference by way of this appeal. Thus, this Civil Miscellaneous

Second Appeal fails.

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C.M.S.A(MD)No.44 of 2021

24.In the result, this Civil Miscellaneous Second Appeal is dismissed.

The judgment and decree, dated 04.09.2019, passed in C.M.A.No.53 of 2018

on the file of the Additional District and Sessions Judge/Fast Track Court,

Tenkasi, confirming the judgment and decree passed in H.M.O.P.No.157 of

2014 on the file of the Principal Subordinate Court, Tenkasi, are confirmed.

No costs.

01.06.2026

NCC : Yes / No

Index : Yes / No

Internet : Yes / No

VSD

To

1.The Additional District and Sessions Judge/

Fast Track Court, Tenkasi.

2.The Principal Subordinate Judge,

Tenkasi.

3.The Record Keeper,

Vernacular Section,

Madurai Bench of Madras High Court,

Madurai.

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C.M.S.A(MD)No.44 of 2021

P.VADAMALAI, J.

VSD

Pre - Delivery Judgment made in

C.M.S.A(MD)No.44 of 2021

01.06.2026

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