Madras High Court
Sugirtha vs M.Sowridhas on 24 February, 2021
C.M.A. 944 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No. 944 of 2009
Sugirtha ..Appellant
Vs
M.Sowridhas ..Respondent
Prayer : Appeal filed under Section 55 of the Indian Divorce Act,
1869, against the decree and judgment passed in I.D.O.P.No. 51 of
1999 dated 22.12.2008 on the file of the Principal District Judge at
Chengalpattu.
For Appellant : Mr.B.Hariharan
for Mr.D.Vijayakumar
For Respondent : Mr.M.Sowridhas
JUDGMENT
The fair and decreetal order dated 22.12.2008 passed in
O.P.No.51 of 1999 is under challenge in the present civil
miscellaneous appeal.
2. The petitioner before the trial Court is the appellant herein.
A petition was filed under Section 32 of the Indian Divorce Act,
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C.M.A. 944 of 2009
1869, praying for a decree for restitution of conjugal rights against
the respondent. The marriage between the petitioner and the
respondent was solemnized on 06.09.1996 at Shrine Velankanni
Church, Nagapattinam. The petitioner and the respondent started
their matrimonial life happily. It is contended that the family friends
Mohan, son of Solomon Yesuadian, Jessy Kamalam, wife of Solomon
Yesuadian and Sardar, son of Sheikh Hyder were present as
witnesses to the marriage. The appellant in her petition has stated
that on account of harassment there was a crack in their
matrimonial life and for the interest of the children, the petitioner
was continuing with the respondent. At one point of time, it is
stated that the respondent avoided the petitioner/wife and deserted
her on 11.11.1998. Thus, the appellant/petitioner issued lawyer's
notice for restitution of conjugal rights and subsequently filed a
petition for restitution.
3. The respondent contested the case. It is stated that the
appellant/petitioner is the wife of one Prakasam and the said
Prakasam was working in the Central Leprosy Training and Research
Institute at Thirumani and died intestate while he was in service in
the year 1990. The respondent was the best friend of Prakasam
and the respondent used to visit Prakasam's house while he was
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C.M.A. 944 of 2009
alive. After the demise of Prakasam, to help the family, the
respondent continued his visit. The appellant/petitioner secured a
job on compassionate ground and it is contended by the respondent
that there was no marriage between them and the appellant
remained as a widow. It is stated that at no point of time, the
appellant/petitioner had not contracted marriage with the
respondent.
4. The trial Court adjudicated the issues with reference to the
documents and evidence. It is not disputed between the parties that
the appellant/petitioner is the wife of one Prakasam, who was an
employee in the Central Leprosy Training and Research Institute
and died while he was in service on 29.04.1990. The
appellant/petitioner had left with her children and she secured a job
in the same Institute at Chengalpattu on compassionate ground.
Ex.P5 is the photo of the petitioner along with the respondent in the
Church. Ex.P6 is the negative of the photo together with another
photo marked as Ex.P7 and Ex.P8 is the negative showing the
petitioner and the respondent together marked through R.W.1
during the course of his cross-examination and considering the
evidence and independent witnesses P.W.2 Mohan and P.W.2
Sardar, discloses that the appellant and the respondent married by
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C.M.A. 944 of 2009
exchange of ring. Ex.R1 - marriage register extract also reveals the
marriage between the respondent and Mary Jagatha dated
29.05.1969. Ex.R2 is the ration card for the year 1998-2003. Ex.R3
is the voters list for the year 1995. E.R4 is the voters list depicting
the name of the respondent and the said Jagatha. Ex.R5 is the
voters list for the year 2000. Ex.R6 is Sl.No.259 and 260 in Ex.R5
reflecting the names of the respondent and Jagatha, together with
the evidence of the respondent examined as R.W.1 deposing that
his wife Mary Jagatha was working in Panchayat Union School as
Teacher and she has retired from the service and getting of pension
was not challenged by the appellant which shows that the
respondent had already married one Mary Jagatha as early as
29.05.1969.
5. Considering the facts and circumstances as well as the
evidence, the trial Court arrived at a conclusion that the marriage
between the appellant and the respondent held on 06.09.1996 was
evidently a second marriage, while the marriage between the
respondent and Mary Jagatha is subsisting. Thus, the marriage
between the appellant and the respondent is null and void in the
eye of law.
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C.M.A. 944 of 2009
6. When the marriage between the appellant and the
respondent is null and void, the question of granting the relief of
restitution of conjugal rights does not arise at all. This being the
factum established before the trial Court, with an acceptable
evidence, this Court do not find any ground to interfere with the
orders of the trial Court and accordingly, the fair and decreetal
order dated 22.12.2008 passed in O.P.No.51 of 1999 stands
confirmed and the civil miscellaneous appeal stands dismissed. No
costs. Consequently, M.P.No. 1 of 2009 is closed.
24.02.2021
Index: Yes
ssm
To
The Principal District Judge at Chengalpattu.
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C.M.A. 944 of 2009
S.M.SUBRAMANIAM, J.
(ssm)
C.M.A.No. 944 of 2009
24.02.2021
https://www.mhc.tn.gov.in/judis/
