M. Venugopal, J. - (1.) The Appellant/Respondent has focused the present Civil Miscellaneous Appeal as against the order dated 05.07.2012 in O.P. No. 2890 of 2007 passed by the Learned II Additional Principal Judge, Family Court, Chennai.
(2.) The Learned II Additional Principal Judge, Family Court, Chennai, while passing the impugned order on 05.07.2012 in O.P. No. 2890 of 2007 [filed by the Respondent/Petitioner (Husband) under Sec. 13(1)(ia) & (ib) and Sec. 26 of the Hindu Marriage Act, 1955] at paragraphs 19 and 20 had observed the following: "19. In order to strengthen the case of the petitioner, the parents his mother and father were examined as P.W.2 and P.W.3. They too deposed the cruel and the inhuman acts of the respondent not only towards the petitioner but also against them. Even P.W.2 and P.W.3 were not cross examined by the respondent which shows the respondent is admitting her abnormal behaviour towards them which amounts to ground of cruelty. She did not adduce any evidence by examining herself and any other witnesses on her side to establish her case. She even deserted the petitioner and did not give proper care to the child who developed learning disability for which medical treatment is being given to him. Though the respondent and the child are not with petitioner they are being maintained by him as per the Court order. In the above circumstances, the grounds for O.P. Of cruelty and desertion by the respondent against the petitioner has been proved. 20. The petitioner claimed permanent custody of the child who is now with the respondent/wife. Because of the attitude of the parties in the presence of the child, the child had developed learning disability for which medical treatment is being given as evidenced from Ex. P.4. According to the petitioner, the respondent is not properly attending the child as a result of which he developed the above said disability. Therefore, he claims permanent custody of the child. The respondent did not deny that her son is suffering from learning disability. She did not disprove his claim of permanent custody of the child by cross examine the petitioner and his witnesses. In the same manner, she has not come forward to produce evidence so as to reject the claim of the petitioner with regard to the custody of the child. In the absence of any evidence, it is presumed that the petitioner has proved his case and he is entitled for permanent custody of the child as he is the legal guardian of the minor child..." and resultantly, allowed the petition and dissolved the marriage that took place between the parties on 02.11.1998 and granted a 'Decree of Divorce' on the ground of 'Cruelty and Desertion' in favour of the Respondent/Husband. Further, it was held that the Respondent/Petitioner/Husband was entitled to the permanent custody of the minor child Hanuraghav.
(3.) The Long Germane Original Petition Facts (Filed by the Respondent/Petitioner/Husband): - - "a) The Appellant/Respondent (Wife) was married to the Respondent/Petitioner/Husband on 02.11.1998 on Ponnusamy Gounder Marriage Hall, Salem. As a matter of fact, the marriage was solemnised in terms of Hindu Religious Customs and Rites. After marriage, the Respondent/Husband and the Appellant/Wife moved to Chennai and started living at No. 40, II Main Road, R.A. Puram, Chennai -28. The marriage was registered in terms of Hindu Marriage Act, 1955. At the time of marriage, the Respondent/Husband was a Software Engineer and the Appellant/Respondent was a house -wife although she being a Post Graduate. Out of the aforesaid wedlock, a male child was born on 28.11.1999. The Respondent/Husband worked in TCS for about four years and later resigned and started his own business. His parents gave funds to him for the purchase of a land at 30/1, I Cross Street, R.A. Puram, Chennai -28 and also, provided further funds for construction of house on the said land and in fact, the title deed of the said property stands in his name. After the marriage, he and his wife lived together at 40, II Main Road, R.A. Puram, Chennai and later at Flat No. 2A, II Floor, Dwaraka Apartments, I Avenue, Indira Nagar, Chennai. The Appellant/Wife is owning and living at Door No. 15, IV Cross Street, CIT Colony, Chennai -4. b) According to the Respondent/Husband, right from the third day of the marriage, the Appellant/Respondent started coaxing him to find a job in USA and wanted to settle there. He was unwilling to do that as he saw better future in India itself. His wife brought her own car and took back the same, since he is in possession of two cars and vans of their own use. Under the circumstances, days started rolling out with love and hate relationship between the parties to the marriage. For the Appellant/Wife, frustration started growing because of her dreams settling in USA got diminished day by day. c) The stand of the Respondent/Husband is that the Appellant/Wife became frustrated and started to abandon him and deprived him of matrimonial happiness. She also used to abuse him in filthy language and cursed him for not settling down in U.S.A. She went to the extent of smashing TV remote and broken the porcelain dinner plates and hitting him with flower vase and tore his shirt into pieces with vigor and anger. He noticed that the Appellant/Respondent losing her control of what she does and behaved like an epilepsy patient which was a mental cruelty not only to him but also to all the elders in the family. He advised her for proper medical check up but she refused to co -operate and again started abusing him in filthy languages. Moreover, her parents were not willing to intervene in this matter.";