Madras High Court
L.Karthikeyan vs R.Shree Reka on 23 December, 2021
C.M.A. Nos.138 of 2019 and 2978 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A. Nos.138 of 2019 and 2978 of 2018
and CMP.No.613 of 2019
L.Karthikeyan ...appellant in both the appeals
Vs.
R.Shree Reka ...respondent in both the appeals
Common Prayer: Civil Miscellaneous Appeal filed under Section 19
(1) of Family Court Act to set aside the judgment/order and decree dated
25.09.2018 made in O.P.Nos.420 and 1199 of 2017 on the file of IV Family
Court, Chennai and dissolve the marriage held on 01.02.2013 between the
appellant and the respondent by allowing this Civil Miscellaneous Appeal.
For Appellant : Mr.G.Krishnakumar
(in both the appeals)
For Respondent : M/s.K.Nayan Jhabakh
(in both the appeals)
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C.M.A. Nos.138 of 2019 and 2978 of 2018
COMMON JUDGMENT
[Judgment of the Court was delivered by T.RAJA, J]
The C.M.A. No.2978 of 2018 has been filed by the appellant-
husband, challenging the fair and decretal order dated 25.09.2018, passed in
OP.No.1199 of 2017 by the learned IV Additional Principal Judge, Family
Court, Chennai, refusing to grant divorce under Section 13(i)(i-a) & (i-b) of
the Hindu Marriage Act 1955, as prayed for him. C.M.A. No.138 of 2019
has been filed by the appellant-husband, challenging the fair and decretal
order dated 25.09.2018, passed in OP.No.420 of 2017 by the learned IV
Additional Principal Judge, Family Court, Chennai, thereby allowing the
petition seeking restitution of conjugal rights filed under Section 9 of the
Hindu Marriage Act, 1995, by the respondent wife.
2. Learned counsel appearing for the appellant/husband submitted
that the marriage between the appellant and the respondent was solemnized
on 01.02.2013 at Chinnasamy Thirumana Mandapam, Mogappair, Chennai,
as per the Hindu Rites and Customs and their matrimonial life was started in
the appellant's house at Kancheepuram, where the appellant has been living
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C.M.A. Nos.138 of 2019 and 2978 of 2018
with his parents. On 14.11.2013, they were blessed with a male child at
Amma Hospital, Choolaimedu. After delivery, the respondent went to her
parental home at Chennai along with the child and the appellant used to
visit the respondent and the baby every week. In the third week of February
2014, the respondent and the baby returned back to the matrimonial home.
During the respondent's stay at matrimonial home, she never allowed the
appellant's parents to see or lift the baby. She used to stay in the bedroom
and she had not even bothered to provide food to him. Thus, the appellant
and his parents were put to great mental agony. The appellant and his
parents adjusted her behaviour, hoping that she would change her character.
But surprisingly, during the second week of March 2014, the respondent's
father, without informing the appellant, came to Kancheepuram and took
the respondent and the child to his house. The appellant came to know the
same only through the SMS sent by her stating that she left Kancheepuram.
3. The learned counsel for the appellant/husband further submitted
that, after the marriage, the appellant and the respondent were not living
happily and all of a sudden, the respondent, on her own, with the aid of her
parents, left the matrimonial home, which would amount to desertion.
Thereafter, the appellant took all efforts for re-union, but she negated the
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same. On seeing the conduct of the respondent that she is not interested to
return to the matrimonial home, the appellant issued a lawyer notice dated
09.01.2017 calling upon the respondent to give her consent for divorce.
4. On the other hand, learned counsel for the respondent/wife
submitted that the respondent/wife started her marital life in the husband's
house with fullest enthusiasm and great expectation and carried out her
entire matrimonial duties as a dutiful wife. But, the appellant/husband failed
to show any love and affection towards the respondent and insulted her. She
has never been allowed to talk to her parents and even not allowed to use
mobile phone in front of them.
5. Learned counsel further submitted that the respondent/wife
conceived during April 2013. In spite of having giddiness, she used to wake
up early by 6.00 am and did the household daily chores. The respondent
gave birth to a male child on 14.11.2013. The appellant visited the Hospital
and stayed there till the birth and thereafter, he never bothered to visit her
and also the new born baby. After she returned to the matrimonial home,
whenever she requested the appellant/husband or her mother-in-law to take
care of the child, they refused. The respondent's mother-in-law even refused
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to look after the baby while she was taking bath or using rest room.
Therefore, she was forced to use the rest room while the baby was sleeping.
Further, when the respondent tried to speak with the appellant several times,
he avoided her. He is not even willing to see her face and also not interested
to live with her and he asked her to move out of his residence with the
child. Hence, she left the house after sending SMS to him. Thereafter, the
appellant had not taken any steps for re-union. But suppressing his
abnormal activities, he sent a legal notice dated 09.01.2017 with false
allegations and asked for consent divorce. On receiving the same, the
respondent filed a petition in O.P.No.420 of 2017 for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act. Consequently, the
appellant filed HMOP.No.1199 of 2017 seeking divorce under Section
13(i)(i-a) & (i-b) of the Hindu Marriage Act.
6. The Family Court conducted joint trial. The appellant/husband was
examined as PW1 and Exs.P1 to P5 were marked and also one Mahesh was
examined as PW2. On the side of the respondent/wife, the respondent was
examined as RW1 and Exs.R1 and R2 were marked. The Family Court
disbelieving the allegations made by the appellant regarding cruelty and
desertion dismissed the HMOP filed by the appellant seeking divorce and
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C.M.A. Nos.138 of 2019 and 2978 of 2018
allowed the OP filed by the respondent seeking restitution of conjugal
rights. Therefore, the appellant-husband is before this Court with these
Civil Miscellaneous Appeals.
7. Heard the learned counsels appearing on either side and perused
the materials available on record.
8. Learned counsel appearing for the appellant/husband submitted
that the appellant married the respondent on 01.02.2013 and they were
blessed with a child on 14.11.2013. Thereafter, the respondent went to her
parental home without even informing the appellant and the appellant came
to know about this only through the SMS sent by her. The respondent,
leaving the matrimonial home, without informing the appellant, amounts to
desertion. Secondly, the respondent never allowed the appellant's parents to
see the baby and she always used to stay in the bedroom and never provided
food to him, which amounts to cruelty.
9. Learned counsel further submitted that, when the respondent was
away from the matrimonial home, her father came to the appellant's house
and took all her belongings, which shows that the respondent is not ready
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and willing to resume the matrimonial life. Therefore, the appellant without
wasting precious time, sent legal notice on 09.01.2017, calling upon her to
consent for divorce. Immediately, she rushed to file a petition for restitution
of conjugal rights. The Family Court, without appreciating the facts and
whose side the fault lies, dismissed the petition for divorce and allowed the
petition for restitution of conjugal rights.
10. Opposing heavily the above submissions, the learned counsel for
the respondent-wife replied that the respondent was put to face innumerable
problems at the hands of the appellant/husband and his family members
within few weeks from the date of marriage and the misunderstanding that
cropped up between them, were blown out of proportions by the appellant
and as a result, she was driven out to her parental home. Hence, the relief
sought for by the appellant under Sections 13(1)(i-a) & (i-b) of the Hindu
Marriage Act for divorce, on the ground of cruelty and desertion, has rightly
been dismissed by the Family Court.
11. We have carefully gone through the typed set of papers and the
submissions made on either side. The main allegation of the appellant is that
he had undergone cruelty at the hands of the respondent, and he elaborated
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the same in paragraphs 4 and 8 of the petition in HMOP.No.1199 of 2017,
which is extracted hereunder:
“4. The petitioner submits that at the time of marriage,
petitioner was working in a Private Limited Company at
Oragadam. The petitioner used to leave home at 6.00 A.M. and
was constrained to reach home at 7.00 P.M. The respondent
never cared about the petitioner nor had the habit of providing
basic needs to the petitioner such as providing coffee in the
morning and evening and the dinner. The petitioner initially
thought that since respondent is new to the matrimonial home it
will take time to adjust, hence the petitioner circumvented to
the circumstances with fond hope that respondent shall adjust
and change her character and attitude in future. But the
respondent has not changed her character not adjusted neither
with the family members nor with the petitioner. The respondent
used to leave her parental home at Chennai frequently without
any reasonable cause and used to stay at Chennai at least a
week until the petitioner, insisted the respondent to back to
Kanchipuram.
.......
8. The petitioner submit that during her stay at
Kancheepuram the respondent never allowed the petitioner
parents to see and lift the baby and used to say in the bedroom
as such the petitioner and his parents were sustained great
mental agony. Despite the same, the petitioner had adjusted
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and even persuaded his parents that after sometime the
respondent will change her character.”
12. A perusal of the above extracted paragraphs shows that the
appellant/husband had made allegation against the respondent/wife that she
refused to give even coffee and dinner to him, but he had not made any
statement regarding breakfast or lunch. Hence, it shows that, she regularly
provides breakfast and lunch. Further, not coming forward to give coffee or
dinner, cannot be a ground to grant divorce.
13. Secondly, the above extracted paragraph 8, shows that during the
respondent's stay at Kancheepuram, she never allowed the appellant's
parents to see and even lift the baby and she always used to stay in the
bedroom. But the appellant is not able to establish the same before the
Family Court. On the other hand, the respondent had stated that her
mother-in-law refused to look after the baby even while she was taking bath
or using rest room. Therefore, she was forced to use the rest room while the
baby is sleeping.
14. It is clear that the respondent was taking care of the child and no
sufficient evidence was produced to substantiate that she refused to permit
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C.M.A. Nos.138 of 2019 and 2978 of 2018
the child to be seen by the appellant's parents. Moreover, it is not the case of
the appellant that she refused to allow the father to see the child.
15. Another ground of the appellant is that the respondent/wife
deserted the appellant, and the same is made in paragraph 15 to 17 of the
petition in HMOP.No.1199 of 2017, which reads as under:
"15.The petitioner submits that the respondent without
any reasonable cause and wilfully has left the matrimonial
home on 12.03.2014 and from then onwards respondent is
living separately from the petitioner. All efforts were taken by
the elders, friends, mediators and person's interest in the
family of both have failed and as such now there is no
possibility for a re-union. The respondent deserted the
petitioner without any reasonable cause and wilfully
neglected the petitioner on 12.03.2014.
16.The petitioner submits that the respondent use to act
on the ill advise of the parents. For small things the
respondent find fault with the petitioner thereby magnifies the
problems which resulted severe mental agony to the petitioner.
The action and inaction on the part of the respondent has
caused immense mental agony, prejudice, hardship and
irreparable loss to the petitioner. Despite sincere steps were
taken for a re-union the respondent was so adamant in her
stand as a result the petitioner was not in a position to have a
peaceful life.
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17.The petitioner submits that the stage has come for
the petitioner to issue a legal notice on 09.01.2017 calling
upon the respondent to give her consent for divorce. After
receipt of the said legal notice the respondent instead of
giving her reply was rushed to this Hon'ble Court and filed a
petition before this Hon'ble Court in O.P.No.420 of 2017
under Section 9 of the Hindu Marriage Act seeking for
conjugal rights with false and untenable contentions only to a
counter blast to the said legal notice. The petitioner reserves
his rights to file a detailed counter in the said petition."
16. On a perusal of the above extract, it is clear that the
appellant/husband had not taken any serious steps to live with the
respondent. If the appellant really wants re-union with the respondent, he
would have sent a lawyer notice calling upon her to live with him and
instead, he straightaway issued a legal notice calling upon the respondent to
give her consent for divorce. This attitude clearly shows the evidence of
character of the appellant. Further, the respondent had stated that the
appellant was not willing to see her face and also not interested to live with
her and asked her to move out of his residence with the child and hence, she
left the house after sending SMS to him. Hence, the ground raised for
desertion has no merit.
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C.M.A. Nos.138 of 2019 and 2978 of 2018
17. In view of the above, both the grounds of cruelty and desertion
raised under Section 13(i)(i-a) & (i-b) of Hindu Marriage Act, fail. Hence,
we are not able to find any fault with the findings reached by the Family
Court.
18. In the result, both these Civil Miscellaneous Appeals fail and the
same are accordingly dismissed, thereby confirming the common fair and
decretal order of the IV Family Court, Chennai in O.P.Nos.1199 of 2017
and 420 of 2017. No costs. Consequently, connected miscellaneous petition
is closed.
(T.R.J.,) (D.B.C.J.,)
23.12.2021
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. The IV Additional Principal Judge,
Family Court, Chennai
2. The Section Officer,
V.R. Section, High Court, Madras.
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C.M.A. Nos.138 of 2019 and 2978 of 2018
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
pvs
C.M.A. Nos.138 of 2019
and 2978 of 2018
23.12.2021
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