Madras High Court
J.Harikrishnan @ Kumar vs K.Kavipriya on 14 December, 2021
C.M.A.Nos.903 & 904 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2021
CORAM :
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.Nos.903 & 904 of 2017
J.Harikrishnan @ Kumar ... Appellant
(in both appeals)
Versus
K.Kavipriya ... Respondent
(in both appeals)
Common Prayer : Civil Miscellaneous Appeals have been filed under
Section 19 of Family Courts Act, against the Judgment and Decree dated
03.02.2016 passed in H.M.O.P.No.147 of 2010, and H.M.O.P.No.1059 of 2010
respectively, by the Learned Principal Judge, Family Court at Chennai.
For Appellant : M/s. S.Kalyani
(in both appeals)
For Respondent : Mr.J.Ravikumar
(in both appeals)
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C.M.A.Nos.903 & 904 of 2017
COMMON JUDGMENT
(The Judgment of the Court was delivered by Mr.Justice.D.Bharatha Chakravarthy)
The appellant/husband, J.Harikrishnan @ Kumar has filed these two
appeals. CMA.No.903 of 2017, is filed as against the Judgment and Decree
made in H.M.O.P.No.147 of 2010 whereby the petition filed by him, for divorce
under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, on the ground of
cruelty was dismissed and CMA.No.904 of 2017 is filed as against the
Judgment and Decree made in H.M.O.P.No.1059 of 2010, whereby the petition
filed by his wife, K.Kavipriya, for restitution of conjugal rights under Section 9
of the Hindu Marriage Act, 1955 was allowed. Both the cases were decided by
the Learned Principal Judge, Family Court at Chennai.
2.The fact that the appellant and the respondent got married on
22.02.2007 at Chennai in accordance with the Hindu rites and customs and
during the month of December 2007, a male child was born and that there is a
marital discord during the year 2009, leading to the husband and wife living
separately, are all admitted.
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C.M.A.Nos.903 & 904 of 2017
3.The case of the appellant / husband is that the marriage did not work
and marital discord has arisen, on account of the cruel acts of the respondent /
wife. According to him, the appellant is working in a Bank, while the
respondent is working as a Police Constable in the Police Department,
Government of Tamil Nadu. According to the appellant the acts of cruelty are as
follows:
● Even before the marriage, the respondent raised an issue relating to the
purchase of a ring to her brother in connection with the marriage, and for
that reason she started abusing the appellant in filthy language.
● Even two days prior to the marriage, the respondent / wife called the
appellant / husband and informed the marriage was being performed
much to her dislike.
● After the marriage the respondent/wife refused to cohabit physical
relationship for nearly 10 to 15 days, stating that she did not have any
interest or idea to live with the appellant/husband.
● The respondent / wife being a Police Constable always wanted to
dominate the appellant/husband and she became physically aggressive to
cause injuries to the appellant with a pen and bitten the appellant on his
hands.
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● The appellant and his family members were humiliated at the Thottil
function after the child was born.
● The respondent / wife threatened the appellant that she will lodge a false
complaint of harassment if the appellant does not adjust with the
respondent / wife.
● The appellant and his family members were manhandled by the
respondent/wife and her family members, therefore, he was made to
approach K-9 Police Station with the complaint.
● Thereafter, the respondent / wife had repeatedly made the appellant to
appear before the Assistant Commissioner of Police, even without lodging
any complaint.
The respondent / wife thus, continuously caused physical and mental agony and
torture. Cumulatively, taking all the facts and actions of the wife amounted to
cruelty, the appellant/husband is entitled for divorce.
4.The respondent / wife filed a counter and resisted the petition filed by
the appellant and stated that she has already filed a petition for restitution of
conjugal rights and she wanted to live with the appellant and child happily,
without any disturbances of the family members of both sides. She denied the
allegations of the appellant as false. It is only the appellant's mother, who picked
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C.M.A.Nos.903 & 904 of 2017
up a quarrel with the respondent / wife. The enquiry by the Police was
conducted only on the basis of the complaint given by the appellant / husband
himself. The mother of the appellant always act that some goddess entered into
her body and started saying “Arul” by pouring water into her body as well as
the body of the respondent / wife and she will create a drama, which has
absolutely spoiled the peace in the house. Only in this context, the respondent /
wife, started requesting for living with the appellant at Police Quarters allotted
to her peacefully. Accordingly, she filed a petition for restitution of conjugal
rights and there is absolutely no ground for divorce. Hence, she prayed for
dismissal of the petition.
5.The petition for restitution of conjugal rights filed by the wife and
counter filed by the husband are also on similar lines.
6.Even after counseling there was no amicable settlement between them,
therefore, the Family Court has no other option but to proceed with the joint
trial of H.M.O.P.Nos.147 and 1059 of 2010.
7.On behalf of the appellant/husband, he examined himself as PW.1. The
marriage invitation is marked as Ex.P1, the marriage photograph was marked as
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C.M.A.Nos.903 & 904 of 2017
Ex.P2, the acknowledgment of the Police complaint is marked as Ex.P3.
Similarly, the respondent wife, examined herself as RW.1. The marriage
invitation was marked as Ex.R1, the marriage photograph as Ex.R2 and the
copy of the voter Identity Card is marked as Ex.R3.
8.The Trial Court, after considering the evidence on record and the
submissions made on behalf of both sides, had, by its common Judgment, dated
03.02.2016 dismissed the application for divorce filed by the appellant/husband
and allowed the application for restitution of conjugal rights filed by the
respondent/wife with the following findings:-
● Relying upon the cross-examination of Pw.1/husband, the Trial Court
found that the act of physical cruelty of biting the hands and attacking
with pen were not proved.
● Again in the cross-examination, the husband admitted that he did not give
the Police complaint on the incident of his wife's relatives manhandling,
after pleading the contrary and therefore, the said act of the cruelty is not
proved.
● The appellant/husband had also admitted the activity of her mother in
behaving like some goddess entered into her body and pouring water on
herself and also on the wife/respondent's body, which caused trauma and
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C.M.A.Nos.903 & 904 of 2017
agony to the respondent/wife.
● The respondent / wife on account of the above act was forced to set up
separate residence in the Police Quarters.
● The Family Court found that the respondent/wife is very much interested
in living with the appellant/husband and she did not take any articles like
gold, silver, etc., from her matrimonial home.
● The Trial Court held that the appellant/husband had failed to prove the
allegations of cruelty and found that the wife is ready and willing to live
with the appellant/husband, therefore, dismissed the divorce petition and
ordered the petition for restitution of conjugal rights.
9.Even during the pendency of the appeal, this Court directed the
personal appearance of both parties and attempted to persuade the parties for an
amicable settlement, which also did not fructify. Therefore, this Court
proceeded to hear the arguments of the learned counsel on either side to decide
the matter on merits.
10.Ms.K.Kalyani, learned counsel for the appellant would submit that the
appellant has narrated all the incidents of cruelty in his pleadings and in his
proof affidavit. She would submit that more specifically, the wife abusing her
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position in the Police Department and called her husband and family members
repeatedly before the Assistant Commissioner of Police, even without any
written complaint. Therefore, the same amounts to cruelty. The second specific
allegation is that she wanted to dominate and disrespect the appellant's parents
and left the matrimonial home, during April 2009. Now, the parties are living
separately for more than 12 years and therefore, the marriage has not worked,
therefore, the appellant/husband is entitled to the relief as he prayed for.
10.Per contra, Mr.J. Ravi Kumar, learned counsel appearing for the
respondent/wife would submit that even today the respondent/wife is willing to
join with her husband on whatever terms he may set. Further, he submitted that
now the son is aged twelve years and for the sake of child, also the couple can
live together. Mere efflux of time should not be put against his client. The
husband having filed a petition for divorce and unable to prove any of the
cruelty instances alleged by him, the grant of relief would amount to taking
advantage of his own wrong, if the divorce is granted by this Court, just on the
basis of efflux of time. He would take the Court through the cross-examination
of PW.1 and demonstrated as to how each and every allegation leveled by him
in his petition were disproved and therefore, there is no any act of cruelty and
prayed for dismissal of the petition.
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11.Now, therefore, the points for consideration in these appeals are :
i) Whether or not, the appellant/husband has made out a
case for dissolution of marriage on the ground of cruelty?
ii) Whether or not, the respondent/wife is entitled for the
relief of restitution of conjugal rights?
iii) Or any other relief?
12.As far as the first act of the cruelty is concerned, viz., physically biting
the husband on hand and injuring him with the pen, we also find that there is
absolutely no evidence whatsoever to prove the same and held that same is not
proved.
13.As far as harassment, by giving police complaint is concerned, a
careful perusal of records and evidence shows that it is only the husband, who
had first lodged a police complaint and only on his complaint, the police have
called for enquiry. As seen from the evidence the respondent/wife has not taken
any undue advantage just because of that she is part of the police force. From
the cross-examination of both parties, it is clear that the wife had approached
the higher officials only for uniting the couple and they had given only advise in
the best interests of the couple. Therefore, there is no harassment by the wife,
by giving repeated complaint before the Police and the said allegations are
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without any substance. The appellant/husband had admitted about the act of
superstition of his mother. Naturally, it may annoy any young wife. Therefore,
when the fault is on the part of the mother of the appellant, the appellant cannot
be permitted to take advantage of the fact that the respondent/wife forced to set
up an abode in the Police Quarters for living peacefully. The Trial Court also
believed the testimony of RW.1, regarding the fact that there was some
disturbances by the mother-in-law, which resulted in the marital discord. Hence,
the first issue is answered against the husband.
14.Regarding the other allegations, it appears to be a matter of normal
wear and tear in the family life and in the teeth of the stand of the husband and
his oral evidence and stand of the wife and her oral evidence, when the Trial
Court has sought to believe the version of wife and as the Trial Court which had
observed closely the demeanor of the witness, their behaviour during
counseling, etc., this Court cannot likely interfere with the findings of the
Family Court and dislodge the same. The appellant / husband has not projected
any proper and serious act of cruelty with specific allegations before us, so as to
reverse the Judgment of the Family Court. Accordingly, issue no.2 & 3 are
answered. In the light of the above, the respondent/wife is entitled for the relief
of restitution of conjugal rights as claimed by her.
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C.M.A.Nos.903 & 904 of 2017
15.Accordingly, we find no merits in the Civil Miscellaneous Appeals and
the same are dismissed. The Judgment and decree of the Learned Principal
Judge, Family Court, Chennai made in H.M.O.P.Nos.147 & 1059 of 2010 are
confirmed. However, there shall be no order as to costs.
(T.R.J.,) (D.B.C.J.,)
14.12.2021
Index : yes
Internet : yes
Speaking order
klt
To
The Learned Principal Judge, Family Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.903 & 904 of 2017
T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
klt
C.M.A.Nos.903 & 904 of 2017
14.12.2021
https://www.mhc.tn.gov.in/judis
