Madras High Court
Veeramani vs Rajaram on 5 September, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reservation 23.08.2018 Date of Judgment 05.09.2018 DATED: 05.09.2018 CORAM THE HONOURABLE MRS.JUSTICE PUSHPASATHYANARAYANA AND THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI C.M.A(MD)No.218 of 2016 Veeramani : Appellant/Respondent/ Wife Vs. Rajaram : Respondent/Petitioner/ Husband PRAYER:- Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, 1984 against the fair and executable order of the Family Court, Dindigul, made in HMOP No.25 of 2014, dated 17.03.2015.
!For Appellant : Mr.D.Nallathambi ^For Respondent : No appearance :Judgment
(Judgment of the court was delivered by T.KRISHNAVALLI,J) This Civil Miscellaneous Appeal is preferred against the fair and executable order of the Family Court, Dindigul, made in HMOP No.25 of 2014, dated 17.03.2015.
2.The case of the respondent/husband is that the marriage between the appellant/wife and the respondent/husband was solemnized on 24.04.1983 at Nagalpudur, Dindigul as per the Hindu Rites and Customs. After marriage, the couple had started their marriage life peacefully, but not begotten any child and due to quarrel with regard to payment of money borrowed by the father of the appellant/wife, on 12.11.2010 the appellant/wife left the matrimonial home with 40 sovereigns of gold jewel and staying with her parents and in- spite of repeated requests including legal notice, dated 05.12.2011, the appellant/wife has not come forward to have a conjugal life with the respondent/husband.
3.The appellant/wife, who was arrayed as the respondent denied the allegations and would contend that the respondent/husband was not working as a fitter at the time of marriage, but he was working as Fitter Assistant. They have no issues out of the wedlock and her father borrowed Rs.1,50,000/- from the respondent, after executing a promissory note and her father repaid the said amount and demanded the respondent to return the promissory note, but the same was refused by the respondent and due to it, from 2009 November onwards the respondent/husband often tortured the appellant/wife and also failed to maintain the family, thereby treating the appellant/wife with cruelty. The respondent/husband had also developed illegal intimacy with one Kaliammal, the wife of Sriram and maintained her for two years and due to which, the respondent/husband insisted to transfer the documents, passbooks and bonds in his name. Since, the appellant/wife refused for the same, she was driven from the matrimonial home on 15.02.2011 and settled with her mother at Nagalpudur, Dindigul. The appellant/wife gave a police complaint on 29.03.2011 before the AWPS, Madurai and pending enquiry, the respondent/husband agreed to return all the documents, bonds and passbooks to the appellant/wife.
4.The learned Family Court, Dindigul, after perusing the materials available on record, both oral and documentary, has granted decree of restitution of conjugal rights, in HMOP No.25 of 2014, dated 17.03.2015. Aggrieved over the said order, the appellant/wife is before this court.
5.Heard both sides and perused the materials available on record.
6.It is admitted that the marriage between the appellant/wife and the respondent/husband was solemnized on 24.03.1983 as per the Hindu Rites and Custom. The appellant/wife and the respondent/husband have no issue. The respondent/husband was examined as PW1. PW1 stated during his evidence that on 12.11.2010, the appellant/wife left the matrimonial home with 40 sovereigns of gold jewel and staying with her parents and in spite of repeated requests including a legal notice, dated 05.12.2011, the appellant/wife has not come forward to have a conjugal life with the respondent/husband and deliberately withdrawn from the society of her husband, which necessitated the respondent/husband to file a petition for restitution of conjugal rights.
7.On the side of the appellant/wife, it is submitted that the respondent/husband was working only as Fitter Assistant and they have not blessed with any issue out of the wedlock. Her father borrowed Rs.1,50,000/- from her husband, after executing a promissory note and on demand, her father repaid the said amount and when her father demanded to return the promissory note, it was refused by her husband and due to it, from November 2009 onwards, the respondent/husband often scolded and tortured the appellant/wife and also failed to maintain the family and treated her with cruelty. It is further submitted that the appellant/wife has come to know that her husband also developed illegal intimacy with one Kaliammal and maintained her for two years and upon questioning the illegal intimacy, the respondent/husband tortured her and also insisted to transfer the documents, passbook and bonds in his name and since the appellant/wife has refused for the same, the respondent/husband driven out her from the matrimonial home on 15.02.2011 and she settled with his mother at Nagalpudur, Dindigul and in this regard, the appellant/wife gave a police complaint on 29.03.2011 before AWPS, Madurai and during the enquiry, the respondent/husband agreed to return all the documents, bonds and pass books to the appellant/wife. The appellant/wife issued a suitable reply for the legal notice sent by her husband, dated 05.12.2011 and due to the activities of her husband, she is not in a position to join with her husband.
8.The respondent/husband stated that without sufficient cause, his wife separated from him. The appellant/wife stated in her counter that she was driven by her husband on 15.02.2011 due to quarrel between her and her husband and her husband refused to return the document relating to the borrowal of Rs.1,50,000/- by her father from her husband and further, she questioned the illegal intimacy of her husband with one Kaliammal, who is his brother's wife. It is to be noted that to prove that the father of the appellant/wife borrowed Rs.1,50,000/- from the respondent/husband and returned the above amount, no document was filed on the side of the appellant/wife. Hence, the evidence of RW1 stating that her father borrowed Rs.1,50,000/- from her husband and after returning money by her father, her husband refused to return the documents and due to it, her husband scolded and subjected her to cruelty by his activities, is not at all acceptable.
9.RW1 in her counter stated that she was driven by her husband on 15.02.2011 and then, she went to her parents house on 29.03.2011 and then, she filed a complaint before the All Women Police Station, Madurai and due to it, her husband was called upon by the police and enquired and in that enquiry, her husband agreed to return the bond and pass book, but he has not returned the above records, instead he sent a legal notice containing false allegations and in order to escape from paying maintenance to her as per MC No.74 of 2011, he filed petition for restitution of conjugal rights and further he had illegal intimacy with his brother's wife and she prays that the petition is liable to be dismissed.
10.RW1 in her counter stated that she was driven by her husband from the matrimonial home on 15.02.2011, but during her cross examination, she has stated that ehd; MW tUlq;fshf fztiu tpl;L gphpe;J thH;e;J tUfpnwd;. Hence, the contention of RW1 stating in her counter that she was driven by husband on 15.02.2011 and thereafter, she is living with her parents is not at all acceptable.
11.It is to be noted here that to prove that the appellant/wife without any cause left the matrimonial home, the brother of PW1 was examined as PW2. PW2 deposed that at the instigation of Chinna Muthu Krishnan, RW1 left the matrimonial home without any sufficient cause and took 40 sovereigns of gold jewels and further RW1 refused to live with her husband and she lived with her parents. From the evidence of PW2, it reveals that without any sufficient cause, RW1 left the matrimonial home.
12.At this juncture, it is relevant to refer Section 9 of the Hindu Marriage Act, which would run thus:-
?9.Restitution of conjugal rights:-When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.?
13.The main contention put forth on the side of the appellant/wife is that her husband had illegal intimacy with one Kaliammal, his brother's wife. However, the appellant failed to prove the said allegation by any substantial evidence. Further, RW1 has not filed any private complaint against her husband and Kaliammal under Section 494 of IPC. Hence, the evidence of RW1 stating that her husband had illegal intimacy with one Kaliammal is not acceptable.
14.When either husband or the wife withdrawn from the society of the other without reasonable excuse, the Court can direct the other party to live with the aggrieved party. In the instant case, the husband with a bona fide desire to bring his wife back to the matrimonial home, has filed petition under Section 9 of the Hindu Marriage Act. When the appellant has withdrawn from the society for a reasonable excuse, it is for her to prove that her withdrawal is for a reasonable excuse. The initial burden on the husband is to prove that the appellant left him without any reasonable cause. Once the same is proved, the burden shifts to the appellant to prove that there are reasonable grounds to support as to why she went away from the respondent's society. Having failed to establish the fact that the appellant has reasonable ground to stay away from the society of the husband, the respondent is entitled for the decree as prayed for. As the respondent has proved that (a) he is not staying with his wife (b) the appellant has withdrawn from the society of the respondent without reasonable cause and [c] he has also filed the petition under Section 9 of the Hindu Marriage Act, the Original Petition has to be allowed.
15.Considering all these aspects and on proper appreciation of the evidence, both oral and documentary, the trial court has granted decree of restitution of conjugal rights. We are of the considered opinion that the order of the trial court does not call for any interference by this court.
16.In the result, this Civil Miscellaneous Appeal is dismissed. No costs.
To, The Family Court, Madurai.
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