Madras High Court
P.Suresh Muthukumar vs S.Dheepa
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, R.Tharani
C.M.A.(MD) Nos.555 & 556 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
18.10.2019 23.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A.(MD) Nos.555 & 556 of 2015
P.Suresh Muthukumar ... Appellant in both appeals
-vs-
S.Dheepa ... Respondent in both appeals
PRAYER (in C.M.A.(MD) No.555 of 2015) : Civil miscellaneous appeal filed
under Section 19 of the Hindu Marriage Act, against the order dated
24.11.2014, passed in H.M.O.P.No.269 of 2008, on the file of the Family
Court, Madurai.
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C.M.A.(MD) Nos.555 & 556 of 2015
PRAYER (in C.M.A.(MD) No.556 of 2015) : Civil miscellaneous appeal filed
under Section 19 of the Hindu Marriage Act, against the order dated
24.11.2014, passed in H.M.O.P.No.634 of 2011, on the file of the Family
Court, Madurai.
For Appellant : Mr.R.Senthil Kumar
(in both appeals)
For Respondent : Mr.N.Dilip Kumar
(in both appeals)
COMMON JUDGMENT
T.S.SIVAGNANAM, J., These civil miscellaneous appeals have been filed by the husband challenging the common Judgment in H.M.O.P.Nos.269 of 2008 and 634 of 2011, dated 24.11.2014, on the file of the Family Court, Madurai.
2. The reason for filing two appeals is because the petition for divorce filed by the husband in H.M.O.No.269 of 2008, praying for a decree of divorce on the ground of cruelty was dismissed and the petition filed by the respondent wife in H.M.O.P.No.634 of 2011 for restitution of conjugal rights was allowed.
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3. Before the Family Court, the warring spouses examined themselves as P.W.1 and R.W.1. On the side of the appellant husband, two documents were marked, namely, marriage invitation as Ex.P1 and a photostat copy of letter sent by the Commissioner of Police, Madurai, along with wife's complaint as Ex.P2. The respondent wife did not mark any documents.
4. The learned Family Court framed two points for consideration as to whether the appellant husband is entitled to divorce as prayed for and whether the respondent wife is entitled to a decree of restitution of conjugal rights. The marriage between the appellant and the respondent was solemnized on 10.09.2006 and out of the wedlock, a female child was born. The appellant husband is an engineering graduate employed in a private concern at the time of marriage and after the marriage, they lived in the joint family consisting of four elder brothers, who were all married. The appellant husband alleged that the respondent wife had always instigated him to move out of the joint family and for a separate residence and she was not willing to live along with the appellant's siblings and parents. The appellant would further state that they are a close-knit family, which resulted in the 3/10 http://www.judis.nic.in C.M.A.(MD) Nos.555 & 556 of 2015 respondent wife creating problems for the appellant and casting aspersions on him. The respondent wife went to the extent of alleging that the appellant had extra-marital relationship with his sister-in-law, which allegation caused tremendous mental cruelty to the appellant. This is the main ground, on which the petition for divorce was filed stating that cruelty has been meted to him by the respondent wife.
5. The respondent had denied the averments and stated that she was always an affectionate wife and out of the wedding, they were blessed with a girl child and at the time of marriage, gold jewels of 70 sovereigns were presented to her and 11 sovereigns were presented to the appellant husband by the respondent's parents apart from giving 10 ½ sovereigns of gold for the Thali chain, a motorcycle was also presented to the appellant and other essential articles worth about Rs.1,00,000/- was also presented.
6. The respondent wife submitted that it is the appellant, who voluntarily disclosed her that prior to the marriage, he had illicit intimacy with his brother's wife. But, threatened her not to disclose the same and if she does, he will murder her and show as if it is a suicide. The respondent wife would state that she never disclosed this information to anybody. However, 4/10 http://www.judis.nic.in C.M.A.(MD) Nos.555 & 556 of 2015 the attitude of the appellant did not change. Therefore, she had disclosed it to the family members of the appellant. Subsequently, the elders in the family intervened and advised the appellant and the respondent to live together as husband and wife. The respondent wife would state that she was forcibly sent away from the matrimonial home and the jewels were retained by the appellant. Subsequently, the respondent wife was compelled to lodge a complaint before the Police, which was enquired into and the appellant willingly agreed to live together with the respondent in March, 2008, and within two months i.e., May 2008 itself, he filed the petition for divorce. The respondent wife in no uncertain terms submitted that she is always wanted to live with the appellant husband and such an averment has been made before this Court in these appeals as well.
7. The learned Family Court, upon considering the oral and documentary evidence, held that the allegation made by the respondent wife about the immoral conduct of the appellant husband has not been proved. The respondent wife has not filed any appeal against the said Judgment. Therefore, the allegation made against the appellant husband has been held to be not proved and therefore, should stand erased.
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8. The next aspect is as to whether there was any cruelty meted out by the respondent wife to the appellant husband. After noting the factual position, the learned Family Court held that it is the family members of the appellant husband, who demanded the respondent wife's jewels and misunderstanding arose, however, the respondent has not given any complaint of downy harassment, but it was a formal complaint, which was enquired into by the Police in which the appellant participated and agreed for re-union during March, 2008, but in May, 2008 the petition for divorce was filed. Thus, the learned Family Court was right in holding that there is no evidence or sufficient reason to dissolve the marriage on the ground of cruelty and accordingly, dismissed the petition filed for divorce.
9. The learned counsel appearing for the appellant placed reliance on the decision of the Division Bench of this Court in the case of G.Jagan vs. M.Eswari, reported in (2019) 3 MLJ 641, wherein it was held that the wife had lodged a criminal complaint against the husband, which was ultimately dismissed and the facts demonstrated that the wife was not interested in giving a chance for the marriage to survive. Rather she did everything to break the marriage. This decision will not be of a decision to the case of the 6/10 http://www.judis.nic.in C.M.A.(MD) Nos.555 & 556 of 2015 appellant, because the Family Court has specifically noted that no complaint of dowry harassment was filed and the formal complaint, which was enquired into by the Police, wherein the wife expressed her unconditional wish to join the appellant husband and the appellant husband also agreed for re-union.
10. The learned counsel appearing for the appellant husband relied upon the decision in the case of Patric Kingsley Iruthayaraj vs. Venartius Anto, reported in (2019) 1 MLJ 30. In the said case, the Court held that the inaction on the part of the wife from the time she left the matrimonial home to her native place till the date when she filed a petition for restitution of conjugal rights clearly shows that she was not inclined to join the husband in the matrimonial home and she did not make any attempt to join the husband or initiate execution proceedings and therefore, the wife was not entitled to a decree of restitution of conjugal rights.
11. In the instant case, the respondent wife at the very first instance i.e., when enquiry was done by the Police during March, 2008, stated that she wants to join the appellant husband. The appellant husband also agreed to re-union and stated to the said effect before the Police Officers. Such findings have been rendered by the Family Court in the impugned Judgment. 7/10 http://www.judis.nic.in C.M.A.(MD) Nos.555 & 556 of 2015 However, it is the appellant husband, who had filed a petition for divorce within two months. It may be true that in the instant case, immediately the respondent wife did not file a petition for restitution of conjugal rights only in the year 2011. In our considered view, the time frame within which the spouses approached the Court cannot always be taken as a yardstick to deny the relief of restitution of conjugal rights. There can be no straight jacket formula that can be adopted in such cases as what is being dealt with is the human lives controlled by the desires and emotions and very often dictated by the elders, kith and kin and others. The state of minds of the spouses would be very brittle and very often they get swayed by the opinion of others, rather than to reason out to themselves as to what would be the best for their lives, if they were together. The situation becomes grim when there is a child, more particularly a girl child. A section of the people will blame the wife for not having a tolerant behavior. Another section of the people will ridicule the husband for his improper conduct. Ultimately, it is the spouses, who have to take a decision and unfortunately, most often, the decision is taken by the others than the spouses themselves. Therefore, we are of the view that the facts of each case need to be noted and relief to be granted by the Family Court on a case to case basis. This is the object and purpose of the Family Courts Act.
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12. For all the above reasons, we find that the appellant husband has not made out any ground to interfere with the Judgment of the learned Family Court in both petitions.
13. In the result, both the civil miscellaneous appeals fail and they are dismissed. No costs.
[T.S.S.,J.] [R.T.,J.]
23.10.2019
Index : Yes / No
Internet : Yes / No
krk
To:
The Judge,
Family Court,
Madurai.
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C.M.A.(MD) Nos.555 & 556 of 2015
T.S.SIVAGNANAM, J.
and
R.THARANI, J.
krk
COMMON JUDGMENT
IN
C.M.A.(MD) Nos.555 & 556 of 2015
23.10.2019
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