Sumithra Devi Vs. G. Venkateshan - Court Judgment

Excerpt:
- sections 13(1) (ia), (ib): [n. kumar & jawad rahim, jj] petition for divorce by wife cruelty and irretrievable break down of marriage death of marital life both emotionally and practically - total desertion for 18 years - abandonment of his wife and son by the respondent - failure to perform matrimonial obligations towards wife and parental obligations towards son mental agony caused to appellant/wife for so many years - prayers for dissolution of her marriage with the respondent held, the material on record clearly establishes that the marriage is irretrievably broken. attempts in reconciliation were not successful. having regard to past experience and material on record, it would be a futile exercise to make any further attempt or reconciliation. the material on record clearly discloses it is the respondent who withdraw from the company of the petitioner without just and sufficient cause. virtually he has abandoned his wife and son and has failed to perform matrimonial obligations towards his wife and parental obligation towards his son who is now aged 20 years. in the circumstances, it can be safely held that a case for divorce is made out. in the instant case the respondent has not contributed anything towards the upbringing of the child and has not cared for his wife; the marriage is dead both emotionally and practically. unfortunately, it is the wife who is seeking divorce; she is not seeking any compensation from the husband; all that she wants is to put an end to the terrible mental agony she is undergoing for so many years. unfortunately, the trial court has dealt with this matter like a civil suit, insisting on adherence to strict rules and evidence to support the said plea and has proceeded to find out whether the conduct of the respondent was harmful and injurious to the petitioner vis--vis bodily injury. this is how it has misdirected itself in approaching the issue of cruelty. hence, the impugned judgment has to be interfered with. appeal as well as petition for divorce was allowed. - ' 4. thus a reading of section 19 clearly reveals that no revision is maintainable from the order of family court, allowing the amendment of plaint. 5. thus having considered the matter in the light of section 19 of family courts act as well as keeping in view article 227,1 find that there is no good ground for interference with the order impugned.hari nath tilhari, j.1. heard smt. geetha menon for smt. m.n. pramila nesargi, learned counsel for the petitioner, and mr. s. raju for mr. k.l. manjunath, learned counsel for the respondent.2. this civil revision under section 115 of c.p.c. has been preferred by the respondent before the appellate court from the order of the family court dated 18.4.1994 allowing the amendment of the petition for divorce in which in alternative the petitioner has sought a decree for judicial separation on the basis of same facts and allegations that have been contained in the petition for divorce. the amendment sought has been quoted in paragraph 1 of the order of the court below. if the relief for judicial separation has also been claimed in alternative to the decree for divorce on the basis of same facts and allegations, it may at the most amount to an additional approach to the same facts and additional relief on same facts and so it could not be said to be amounting to a new case and the court below has rightly held that no irreparable loss is going to be caused to the present petitioner who had been respondent before the family court.3. looking to the approach, i do not find that the order impugned is such that it may require interference even either under article 227, what to say of petition under section 115. as regards revision from the order of the family court, the revision itself is not maintainable from the order of the family court in view of sub-section (5) of section 19. section 19 reads as under :'section 19 : appeal -(1) save as provided in sub-section (2) and notwithstanding anything . . contained in the code of civil procedure, 1908 (5 of 1908) or in the code of criminal procedure, 1973 (2 of 1974) or in any other law an appeal shall lie from every judgment or order not being an interlocutory order of a family court to the high court both on facts and on law.(2) no appeal shall lie from a decree or order passed by the family court with the consent of the parties or from an order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974).provided that nothing in this sub-section shall apply to any appeal pending before a high court or any order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974) before the commencement of the family courts (amendment) act, 1991. and(3) every appeal under this section shall be preferred within a period of 30 days from the date of the judgment or order of a family court.(4) the high court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the family court situated within its jurisdiction passed an order under chapter ix of the code of criminal procedure, 1973 (2 of 1974) for the purposes of satisfying itself as to the correctness, legality or propriety of the order not being an interlocutory order and so as to the regularity of such proceeding.(5) except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a family court.(6) an appeal preferred under sub-section (1) shall be heard by a bench consisting of two or more judges.'4. thus a reading of section 19 clearly reveals that no revision is maintainable from the order of family court, allowing the amendment of plaint.5. thus having considered the matter in the light of section 19 of family courts act as well as keeping in view article 227,1 find that there is no good ground for interference with the order impugned. petition, as such, is hereby dismissed.