Madras High Court
Jegadeeswari vs D.Iyyappan on 2 December, 2021
C.M.A.Nos.1511 & 1512 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.Nos.1511 & 1512 of 2021
Jegadeeswari
D/o Thulasingam .. Appellant in both the CMAs
-vs-
D.Iyyappan .. Respondent in both the CMAs
Memorandum of Grounds of Civil Miscellaneous Appeals filed under
Section 19(1) of the Family Courts Act, 1984, against the common fair and
decretal order dated 30.01.2020 made in O.P.Nos.3502 of 2014 & 4529 of
2013 on the file of the II Additional Principal Judge, II Additional Family
Court at Chennai.
For Appellant :: Mr.D.Rajagopal
For Respondent/Caveator:: Mr.G.Magesh Kumar
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
Ms.Jegadeeswari, D/o Thulasingam has filed these two civil
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miscellaneous appeals, one appeal against the order passed in O.P.No.3502
of 2014 granting restitution of conjugal rights in favour of Mr.D.Iyyappan,
the respondent herein and another appeal against the order passed in
O.P.No.4529 of 2013 refusing the prayer of the appellant to dissolve the
marriage solemnized between the appellant and the respondent on 27.7.2011
at Vaitheeswaran temple which was registered on 1.8.2011 at the Registrar
Office, Royapuram, Chennai on the ground of both mental and physical
cruelty by the respondent against the appellant. Therefore, both the appeals
are taken up together and disposed of by this common judgment.
2. Mr.D.Rajagopal, learned counsel appearing for the appellant
argued that when the appellant was pursuing her final year B.C.A., course in
the Prof.Dhanapalan College, she used to board the college bus near
Sadasivam Nagar bus stand at Madipakkam and invariably the respondent
was accosting her way to the said college bus stop and while she used to
return back from the college also, the respondent was making all sorts of
attempts to woo and solicit her. But the appellant was avoiding all the
attempts of the respondent and also warned him on several occasions to
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C.M.A.Nos.1511 & 1512 of 2021
keep away from her. While so, on 21.7.2011, when the respondent tried to
accost the appellant at the above said bus stand, fortunately the relatives of
the appellant caught hold of the respondent and warned him with a specific
request not to chase her any more. In spite of the said warning, the
respondent was mindless to the consequences that their lives would be put to
risk and danger. At about 7.15 AM on 25.7.2011, when the appellant was
waiting for her college bus in the bus stand, the respondent, criminally
intimidating the appellant that she would be done away with if she fails to
cooperate with him, forced her to accompany him to Sirkazhi near
Mayavaram. It was further alleged that on 27.7.2011, the respondent also,
taking a blade, attempted to cut his right arm stating that he would commit
suicide unless the appellant accompanied him to Sirkazhi. When the
appellant succumbed to the pressure on the fear that the respondent would
be spoiling the goodwill and reputation of her family and also putting her
parents at the risk of life threat, accompanied him. Taking advantage of the
same, the respondent has created a false marriage being conducted at
Vaitheeswaran temple. However, with great difficulty, the appellant escaped
from the clutches of the respondent. In the meanwhile, the appellant's father
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C.M.A.Nos.1511 & 1512 of 2021
lodged a complaint before the S-7, Madipakkam Police Station and the case
was also taken as 'girl missing' in Crime No.1090 of 2011. Subsequently, on
the appearance of the appellant before the said police station, the case was
altered into one under Section 366 IPC. After recording her statement, she
was produced before the learned Judicial Magistrate at Alandur and
thereafter, recording her statement under Section 164 Cr.P.C., the
respondent was arrested on 2.8.2011 and remanded to judicial custody.
Subsequently, he was also released on bail. Although the respondent was
chargesheeted by the S-7 Madipakkam Police, finally, the Mahila Court,
Chengalpattu vide the judgment dated 29.6.2015 passed in S.C.No.89 of
2012, acquitted him of the above mentioned charge. A reading of the
findings and conclusions reached by the Mahila Court, Chengalpattu in
S.C.No.89 of 2012 would clearly speak about the case of harassment,
intimidation and blackmail administered by the respondent against the
appellant, who was pursuing her college studies. When the prime life of the
appellant was put to irreparable loss and consequently her family was also
put to face humiliation in the public domain, the respondent has wrongly
filed the O.P.No.3502 of 2014 under Section 9 of the Hindu Marriage Act
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C.M.A.Nos.1511 & 1512 of 2021
seeking an order for restitution of conjugal rights. When it was opposed
tooth and nail stating that without any willingness or consent and when the
marriage was not at all solemnized in the manner known to law, as it was
concocted and after thought surrounded by mysteries and suspicions, the
learned II Additional Principal Judge, Chennai has erroneously allowed the
petition filed by the respondent under Section 9 of the Hindu Marriage Act,
however, when the appellant also filed the O.P.No.4529 of 2013 seeking an
order for dissolution of the so-called marriage said to have been solemnized
on 27.7.2011 at Vaitheeswaran temple, that was also allegedly registered on
1.8.2011 at the Registrar's office, Royapuram, Chennai as per the Hindu
rites and customs, the learned II Additional Principal Judge, Chennai has
wrongly dismissed the said petition, by the common order dated 30.1.2020.
Now, in spite of the above order, the appellant is not living with the
respondent, for the reason that there was no such marriage solemnized as
alleged by the respondent. Therefore, when there is no semblance of
marriage taken place between the appellant and the respondent on
27.7.2011 and the respondent also has not even substantiated his allegation
before the II Additional Family Court, Chennai that the marriage was
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C.M.A.Nos.1511 & 1512 of 2021
solemnized in the manner known to law and that the conduct of the parties
are writ large and vividly that they are not living together from the date of
marriage by leading a normal life, it goes without saying that the allegation
with which the respondent filed the petition under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights, is without any merit. But this
has been overlooked by the II Additional Family Court, Chennai. Therefore,
the impugned fair and decretal order passed by the II Additional Family
Court, Chennai is liable to be set aside by allowing the civil miscellaneous
appeals, he pleaded.
3. Mr.G.Magesh Kumar, learned counsel appearing for the respondent
submitted that the argument advanced by the learned counsel for the
appellant that no marriage has taken place between the appellant and the
respondent on 27.7.2011 is unacceptable, inasmuch as both the appellant
and the respondent have solemnized their marriage at Vaitheeswaran temple
as per the Hindu rites and customs and thereafter, they have also registered
the same in the Registrar's office at Parrys, Chennai and that subsequently,
on the intervention of the family members of the appellant, she has deserted
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the respondent and gone back to her parental home. Subsequently, the
appellant's family members, opposing the marriage, have wrongly convinced
her to part with the contact of the respondent. In the meanwhile, the
respondent has been put to incarceration in view of the registration of the
case in Crime No.1090 of 2011 by the S-7, Madipakkam Police Station,
Chennai. Finally when the matters were taken up by the II Additional
Family Court, Chennai, a compromise formula was worked out, thereby the
appellant's family offered a sum of Rs.1,00,000/-. But this was not accepted
by the respondent. However, after the trial commenced, the respondent
sought for some more reasonable amount. As the said reasonable
compromise proposal was not accepted by the appellant, the II Additional
Family Court, Chennai has passed a reasoned order. Therefore, the appeals
filed by the appellant challenging the impugned fair and decretal order
deserve to be dismissed, he pleaded.
4. But we are unable to find any merit or justification in the
arguments advanced by the learned counsel appearing for the respondent,
for the following reasons. Firstly, the respondent approached the II
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Additional Family Court with O.P.No.3502 of 2014 for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act on the ground
that there was a marriage solemnized on 1.8.2011 at No.10/11, Market Farm
First Street, New Washermanpet, Chennai as per the Hindu rites and
customs. However, the averment in O.P.No.4529 of 2013 filed by the
appellant shows that the marriage was solemnized on 27.7.2011 at
Vaitheeswaran temple and subsequently, the same was also registered on
1.8.2011 at the Registrar's office, Royapuram, Chennai. When the
respondent approached the Court below stating that the marriage was
solemnized on 1.8.2011 at No.10/11, Market Farm First Street, New
Washermanpet, Chennai, it has not been substantiated by the respondent
with any oral and documentary evidence. This vital and crucial legal issue
has been completely overlooked by the II Additional Family Court, Chennai.
Secondly, when it was also claimed by the respondent that they were living
as husband and wife, it was the counter claim of the appellant that her father
made a police complaint before the S-7, Madipakkam Police Station stating
that his daughter was missing, based on which a case was registered in
Crime No.1090 of 2011 for 'girl missing'. Subsequently, on the appearance
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of the appellant before the said police station, the case was altered into one
under Section 366 IPC and her statement was also recorded. Thereafter, she
was produced before the learned Judicial Magistrate, Alandur accompanied
by her parents. On the basis of her statement recorded under S.164 Cr.P.C.,
the respondent was arrested on 2.8.2011 and remanded to judicial custody.
Subsequently, he was released on bail. When the case was finally tried in
S.C.No.89 of 2012, the Mahila Court, Chengalpattu, by a judgment dated
29.6.2015, disbelieving the case of the prosecution, acquitted the respondent
of the charge. A perusal of the above judgment also goes to the root of the
respondent's case. When the Mahila Court, Chengalpattu, accepting the
case of the respondent, recorded that the marriage took place on 27.7.2011
at Vaitheeswaran temple, the pleading made by the respondent in the
petition under Section 9 of the Hindu Marriage Act shows that the marriage
between the appellant and the respondent was solemnized on 1.8.2011 at
No.10/11, Market Farm First Street, New Washermanpet, Chennai, the
admitted portion of the pleading in paragraph-3 of the petition is extracted
hereunder:-
“3. The respondent is the legally wedded wife of
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the petitioner. The marriage between the petitioner
and the respondent was solemnized on 01.08.2011
at No.10/11, Market Farm 1st Street, New
Washermanpet, Chennai-81 according to Hindu
rites and customs....”
Therefore, when the respondent himself, in the petition filed under Section 9
of the Hindu Marriage Act, has taken one stand and it is completely differing
from the one canvassed before the Mahila Court, Chengalpattu, we are of
the considered opinion that the respondent has not made out a case. Thirdly,
the arguments advanced by the learned counsel appearing for the respondent
before this Court also would show that the appellant's family has come out
with the proposal for compromise offering one lakh rupees. Since the
respondent has demanded a sum of Rs.5,00,000/- to give his consent for
divorce, we fail to understand as to how the respondent, who has married
the appellant out of love and affection, can come forward to compromise his
pure love only for a sum of Rs.5,00,000/-. That also vindicates the stand of
the appellant that there was no marriage solemnized between the appellant
and the respondent, as alleged by the respondent. Therefore, for these
discrepancies and infirmities, we are inclined to interfere with the impugned
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fair and decretal order passed by the Court below.
5. Accordingly, for the reasons mentioned above, the fair and decretal
order passed by the learned II Additional Principal Judge, II Additional
Family Court, Chennai is set aside and the civil miscellaneous appeals shall
stand allowed. Consequently, the petition in O.P.No.3502 of 2014 filed by
the respondent for restitution of conjugal rights stands dismissed and the
petition in O.P.No.4529 of 2013 filed by the appellant seeking a decree for
dissolution of marriage stands allowed as prayed for. However, there is no
order as to costs.
Speaking/Non speaking order (T.R.,J.) (D.B.C., J.)
Index : yes/no 02.12.2021
ss
To
1. The II Additional Principal Judge
II Additional Family Court
Chennai
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C.M.A.Nos.1511 & 1512 of 2021
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
ss
C.M.A.Nos.1511 & 1512 of 2021
02.12.2021
https://www.mhc.tn.gov.in/judis
