Madras High Court
S.Dhamodharakumar vs Karthiga on 10 January, 2022
Author: T.Raja
Bench: T.Raja, D.Bharatha Chakravarthy
C.M.A.No.3709 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.01.2022
CORAM :
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.3709 of 2021
S.Dhamodharakumar ... Appellant
Versus
Karthiga ... Respondent
Prayer : Civil Miscellaneous Appeal has been filed under Section 19 of Family
Court Act, to set aside the order made in F.C.O.P.No.480 of 2018 on the file of
the Family Court, Salem, dated 01.11.2021.
For Appellant : Mr.K.A.Ravindran
JUDGMENT
(Judgment of this Court made by Mr.Justice D.Bharatha Chakaravarthy) This appeal in C.M.A.No.3709 of 2021 is filed by the appellant/husband, namely S.Dhamodharakumar, aggrieved by the judgment and decree of the Family Court, Salem in F.C.O.P.No.480 of 2018, thereby, granting a decree of divorce on the petition filed by the respondent/wife under Section 13(1) (i-a) of the Hindu Marriage Act, on the ground of cruelty.
2. The gist of the allegations of cruelty made by the respondent/wife https://www.mhc.tn.gov.in/judis 1/8 C.M.A.No.3709 of 2021 before the Family Court is that the respondent/wife and the appellant/husband got married on 02.03.2017 and even though they were living under the same roof until September, 2018, the husband never shown any interest in consummating the marriage. The respondent/wife took up the matter with the appellant's uncle for advising him. Enraged by the same, on 17.09.2018, the appellant/husband scolded her in filthy language and attempted to forcefully sexually abuse her and therefore, from 18.09.2018 onwards, she was forced to leave matrimonial home and therefore, she prays for dissolution of the marriage stating that the behaviour of the appellant in not consummating the marriage amounts to cruelty.
3. The appellant/husband filed a counter and resisted the said allegations. He admits that the marriage was never consummated. According to the appellant, it is the respondent/wife who all along postponed the consummation, initially, by stating that she has to go abroad to London and even though they started living in London, she avoided by saying that she did not want to get pregnant. On 16.09.2018, infront of his relatives, the respondent/wife levelled allegations that he was not behaving like a man and on 18.09.2018, the respondent/wife was taken back by her parents, relatives and friends. Even now, the appellant/husband is ready and willing to live with the https://www.mhc.tn.gov.in/judis 2/8 C.M.A.No.3709 of 2021 respondent/wife.
4. Unable to resolve the matrimonial conflict between the parties through the Counselling, the Family Court proceeded with the matter by way of trial and the respondent/wife examined herself as P.W.1 and one Chengottian was examined as P.W.2 and Exs.A1 to A4 were marked. On behalf of the appellant, the appellant/husband examined himself as R.W.1 and one Sathyavani as R.W.2 and no documents were marked on behalf of the appellant/husband.
5. Thereafter, upon consideration of the pleadings of the parties and the evidence on record, the Trial Court found that it is the admitted case between both the parties that even though they were living together for a long period of one year and six months, no consummation of marriage took place. From the very fact that it was only the respondent/wife who took up the issue with her parents and then thereafter with the relatives of the appellant/husband, the Trial Court came to the conclusion that non-consummation was on account of the fact that the respondent/husband was not willing. Therefore, such unwillingness to consummate the marriage at the very inception of the marriage amounts to cruelty to the wife and therefore, decreed the petition for divorce as prayed for. Aggrieved by the same, the present appeal is filed before this https://www.mhc.tn.gov.in/judis 3/8 C.M.A.No.3709 of 2021 Court.
6. Mr.K.A.Ravindran, the learned Counsel for the appellant would submit that the respondent/wife did not plead or prove impotency of the appellant/husband. As a matter of fact, she did not also move the Court for annulment of the marriage under Section 12 of the Hindu Marriage Act. On the other hand, from the pleading in the petition itself it would be very clear that when the appellant/husband was ready and wanted to consummate the marriage on 17.09.2018, the same is taken exception by the respondent/wife and therefore, since the consummation did not happen only on account of the attitude of the respondent/wife, the appellant/husband cannot be found fault with. It is his further submission that she wanted to go abroad and then, she did not want to get pregnant, it is only the respondent/wife, who avoided consummation of marriage. It is the further submission of the appellant/husband that he is ready and willing to live together with the respondent/wife.
7. We have considered the submissions made on behalf of the appellant and the findings and conclusions of the Trial Court. Given the nature of allegations the appellant is making against the respondent/wife, the submission https://www.mhc.tn.gov.in/judis 4/8 C.M.A.No.3709 of 2021 of appellant that he is ready and willing to live with the respondent/wife is unbelievable, amusing and unpalatable. Therefore, we hold that the present appeal itself is filed with an oblique motive of prolonging the agony of the respondent/wife.
8. As rightly concluded by the Trial Court, it is the wife who has taken up the issue with the relatives and that makes it abundantly clear that it is the appellant/husband who was not interested in consummation of marriage. Further, the case of the appellant/husband that the respondent/wife did not want to get pregnant and therefore the appellant also avoided consummation is absolutely unbelievable, given the knowledge and background of the parties and in the present era of contraceptives. Therefore, it is clear that it was only the appellant/husband who was not interested in consummation of the marriage.
9. The contention of the learned Counsel for the appellant/husband is that the respondent/wife did not plead and prove the factum of impotency. We are afraid that the same is in any manner relevant because if only the wife had filed the petition for annulment of marriage as per Section 12 of Hindu Marriage Act, it is necessary for her to prove the impotency and the consequence of non- consummation on account of such impotency. But, here is a case, the wife has https://www.mhc.tn.gov.in/judis 5/8 C.M.A.No.3709 of 2021 approached the Court for decree of divorce under Section 13 (1) (i-a) of Hindu Marriage Act, on the ground of cruelty. Whether the appellant was potent or not was never an issue. The only question before the Family Court was that he was not willing to consummate the marriage, which amounts to cruelty to any young spouse. Parties admitted that the marriage was not consummated even though they lived together for one year six months. The Family Court on the basis of the evidence on record and the material circumstances found that it was only the husband, who was not interested in consummation of marriage and therefore, the arguments of the learned Counsel for the appellant/husband are without any merits and hence rejected.
10. The Civil Miscellaneous Appeal is therefore without any merits and is dismissed.
(T.R.J.,) (D.B.C.J.,)
10.01.2022
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T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
grs
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