Madras High Court
Pavul Joseph vs Arul Mary on 4 February, 2021
C.M.A.Nos.2801 and 2802 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:04.02.2021
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.Nos.2801 and 2802 of 2013
Pavul Joseph .. Appellant in both CMAs
Vs.
Arul Mary .. Respondent in both CMAs
PRAYER in CMA.No.2801 of 2013 : Civil Miscellaneous Appeal is filed
under Section 55 of Indian Divorce Act , against the fair and decretal order of
District Court, Nagapattinam, dated 18.04.2011 made in DOP.No.3 of 2009.
PRAYER in CMA.No.2802 of 2013 : Civil Miscellaneous Appeal is filed
under Section 55 of Indian Divorce Act , against the fair and decretal order of
District Court, Nagapattinam, dated 18.04.2011 made in MOP.No.19 of 2009.
For Appellant
in both CMAs : Mr.S.Sounthar
For Respondents :Mr.S.Kaithamalai Kumaran
in both CMAs
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C.M.A.Nos.2801 and 2802 of 2013
COMMON JUDGMENT
The appellant in both Appeals are husband, who filed H.M.O.P.No.3 of
2009 for divorce against the respondent herein. He is the respondent in
M.O.P.No.19 of 2009 filed by his wife for restitution of conjugal rights.
Since both parties are same in the petitions, both cases were tried together and
common order was passed. Accordingly, the divorce petition filed by the
husband was dismissed and the restitution of conjugal right petition filed by
the wife was allowed. Aggrieved by that order, the husband/appellant
preferred these appeals. The wife/respondent contested both appeals.
2. The facts of the case are as follows:
The marriage between the appellant and the respondent was solemnized
on 19.06.2005 as per the Christian rites. After marriage, both husband and
wife were living together in the appellant's house. It is admitted fact that both
were teachers by profession. Immediately, within two months from the date
of the marriage, according to the appellant, his wife left the matrimonial
home without any reason and also she had lodged a dowry complaint against
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C.M.A.Nos.2801 and 2802 of 2013
the appellant and his family members. During that time, the respondent was
pregnant and she gave a birth to child in the year 2006. But she gave a false
complaint before the police station with the allegation of cruelty, and inspite of
his best efforts, she refused to live with him and left the matrimonial home
with an intention to cause desertion and therefore, he approached the Court
for divorce.
3. The respondent admits the marriage and her employment but she
denied other allegation levelled against her by her husband. She submits that
due to the ill-treatment by her in-laws and out of cruelty, she was forced to
leave the matrimonial home, but she was always intended for reunion, for that
purpose only she gave a complaint before the police, but her husband refused
to live with her on the ill-advice of her in-laws, besides, he has not seen her
child. More over, even before the Panchayatdars, her husband refused for
reunion and willing for separation for which she is not interested, so she
prayed for restitution of conjugal rights.
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C.M.A.Nos.2801 and 2802 of 2013
4. At the time of trial, the husband was examined as PW.1 and the
wife was examined as RW.1 and the Panchayatdars were examined as RW.2
and RW.3.
5. Considering the oral and documentary evidence, the trial Court
dismissed the divorce petition filed by the husband and decreed the restitution
of conjugal rights petition filed by the wife.
6. Aggrieved by that, the appellant/husband prayed to set aside the
order passed by the trial Judge by filing this appeal.
Point for consideration:
Whether the trial Judge failed to appreciate the oral and
documentary evidence adduced on the side of the appellant and
dismissed the divorce petition and erroneously concluded the
conduct of the respondent that she is always intended for reunion.
7. From the facts, it reveals that within two months from the date of
marriage, the husband and wife were separated in the year 2005. At the time,
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C.M.A.Nos.2801 and 2802 of 2013
she was conceived and she gave birth to the child in the year 2006.
Thereafter, till date, she is living separately along with her child. The
appellant/husband contended that she gave a false complaint against him and
his family members. But, the learned trial Judge pointed out that there is no
material evidence on the side of the appellant to establish that she gave a false
complaint against her husband. As per the evidence of the wife/RW.1, she
gave complaint to the police only for reunion. After the birth to the child in
the year 2006, the Panchayat was held at the request of the wife before the
Velankanni Madha Church. The panchayatdars were examined as RW.2 and
RW.3. This fact not been denied by the appellant that in that panchayat, the
husband agreed to return back the articles but not interested for reunion with
his wife. The relevant portion of ( PW.1-cross examination) reads as follows:
"ntsh';fz;zp g';F je;ij Kd;dpiyapy; g";rhaj;J
elj;jpdhh;fs;/ mth; FLk;gk; elj;j brhd;dhh;/ Mdhy; ehd;
FLk;gk; elj;jtpy;iy/
So in the said panchayat also, the panchayatdars insisted the appellant
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C.M.A.Nos.2801 and 2802 of 2013
to live with his wife but he refused. With the help of the RW.2 and RW.3, the
wife is able to establish that she always also intended for re-union and she has
no intention to cause desertion.
8. At the time of the arguments, the learned counsel for the appellant
submits that from the year 2005 to till date, they were separated and there is
no possibility of reunion and prayed for dissolution of marriage. It is true
that from the year 2005, the husband and wife were separated and the wife
always intended for live with her husband along with her child, but the
conduct of the appellant reveals that he always insisted for divorce and not
interested to live with his wife. Separation for a period more than 15 years
was caused due to the non-cooperation of the husband, on the other hand, the
wife is ready for reunion all these years. Furthermore, she left the
matrimonial home nor with intention to cause desertion, but the facts of the
case reveals that due to the ill-treatment made by her in-laws, she left the
matrimonial home. However, she took all efforts for reunion all these years.
Therefore, the appellant is not entitled to take advantage of the long
separation between himself and his wife nor it is a ground for divorce.
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9. Considering these facts, the trial Court rightly allowed the petition
for restitution of conjugal rights filed by the respondent which calls no
interference by this Court. The appellant failed to establish that his
wife/respondent voluntarily left the matrimonial home with intent of cause
desertion. Therefore, the trial Court rightly dismissed the divorce petition
filed by this appellant which warrants no interference by this Court. Hence,
both Civil Miscellaneous Appeals are dismissed as no merits. Considering the
relationship between the parties. Time for restitution of conjugal rights There
is no order as to costs.
04.02.2021
ub
Index : Yes/No
Speaking Order: Yes/No
T.V.THAMILSELVI,J.
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ub
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