Madras High Court
Nithiya vs Narasimman on 10 March, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.03.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)NOs.1383 and 1393 of 2015
Nithiya :Appellant/Respondent in
C.M.A(MD)No.1383 of 2015
and Appellant/Petitioner in
C.M.A(MD)No.1393 of 2015
.vs.
Narasimman :Respondent/Petitioner in
C.M.A(MD)No.1383 of 2015
and Respondent/Respondent
in C.M.A(MD)No.1393 of 2015
COMMON PRAYER:Civil Miscellaneous AppealS filed under
Section 19 of the Family Courts Act praying this Court to set aside
the common judgment and decrees passed by the Family Court,
Madurai in H.M.O.P.No.281 of 2008 and H.M.O.P.No.356 of 2011,
both dated 15.09.2015.
For Appellant :Mr.A.Jayaramachandran
in both appeals
For Respondent :Mr.D.Srinivasaraghavan
in both appeals
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2
COMMON JUDGMENT
************************
[Judgment of the Court was made by PUSHPA SATHYANARAYANA,J.]
The above Civil Miscellaneous Appeals are directed against
the common judgment passed by the Family Court, Madurai
against two H.M.O.Ps', one in H.M.O.P.No.281 of 2008 filed by the
husband for divorce under Section 13(1)(ia) of the Hindu Marriage
Act and another one in H.M.O.P.No.356 of 2011 filed by the wife
under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. Both the H.M.O.Ps' were tried together and a
common judgment was passed by allowing the Petition for divorce
and dismissing the Petition filed for restitution of conjugal rights.
Aggrieved by the same, the wife had preferred the above Civil
Miscellaneous Appeals.
2.Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
3.In the petition for divorce, it has been stated by the
respondent/husband that he has been working as a Tea Master in a
Tea Shop and the marriage was performed with the consent of the
appellant/wife.When the appellant and the respondent were
residing together, the wife used to allege that the husband was not
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looking good and he was a man of bald head. She had further
alleged that he was only wearing dhothis and does not wear
trousers. Thus it has been alleged that the wife was body shaming
the husband every day resulting in mental agony for the husband.
Besides, it is alleged that the wife used to fight with the husband
on and off and leave the matrimonial home and went to her parents
house. Though the parents of the appellant had advised her to
live with the respondent/husband, she was not able to behave like
a normal wife. It is further alleged that the appellant/wife often
pick up quarrel with him and behaved like a person of unsound
mind. The marriage was performed on 27.4.2007 and the appellant
once for all left the matrimonial home on 12.12.2007 and had not
returned back to the matrimonial home. Several efforts taken by
the husband for re-union, ended in vain. The appellant had
categorically stated that she does not want to live with the
respondent/husband. Therefore the husband had filed a petition for
divorce in the year 2008.
4.The appellant/wife had filed a counter affidavit in the
divorce petition in the year 2009, denying all the allegations
levelled by the respondent/husband and had independently filed
H.M.O.P.No.356 of 2011 for restitution of conjugal rights three
years after the divorce petition was filed. Her only allegation was
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that the respondent/husband had demanded additional dowry of
five sovereigns of gold jewellery and Rs.5,000/- as cash. On the
above facts, the Family Court, Madurai has granted divorce in the
petition filed by the respondent/husband and dismissed the petition
for restitution of conjugal rights filed by the wife.
5.The only question that arose for consideration is whether
the divorce already granted by the Family Court can be sustained?
6.It is admitted that the wife had been body shaming the
husband of his look stating that he is bald headed and also the job
that he was doing. After H.M.O.P.No.281 of 2008 was filed, the
appellant seem to have filed a Police complaint as a counter-blast
on 25.6.2008 before the All Women Police Station,
Thirupparankundram alleging that the husband had demanded
additional dowry. Admittedly, the wife had not taken any effective
steps to join with her husband after she left the matrimonial home
in December 2007. She had filed a petition under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights only three
years after divorce petition was filed by the husband. Even in the
cross-examination of the wife, she has admitted that there were
problems that arose between them even within three months from
the date of marriage and they have been living separately then on.
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She also has admitted that she had given Police complaints against
the husband. The said complaints were quashed and the orders
passed in Crl.O.P.Nos.1669 and 6973 of 2008 are maked as Ex.P4
and Ex.P6.The complaint given by the wife on the ground of
demand of dowry was closed after the enquiry. Therefore, it is
evident that the wife has got no just and sufficient cause to be away
from her husband and she has been living away from the
matrimonial home for the past 8 years. When the wife herself has
admitted that she has gone to her parents house on her own
volition in the end of 2007 and she has never made any attempt to
join with her husband till such time and she has filed a petition for
restitution of conjugal rights only in the year 2011 and there is no
reason stated as to why there is a delay of more than three years
in preferring the H.M.O.P for restitution of conjugal rights.
7.The wife has withdrawn from the society of the husband
without any reasonable cause. Therefore, she cannot take
advantage of her own folly and seek for restitution of conjugal
righs. Therefore the Family Court, Madurai had rightly dismissed
the O.P filed by the wife for restitution of conjugal rights.Insofar as
the divorce petition is concerned, when already as admitted by the
wife that she was not willing to live with her husband and she had
been causing mental agony by commenting upon his physical
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appearance and humiliated the husband of his avocation, the same
was considered by the Family Court, Madurai and granted a
decree of divorce.
8.In the light of the above discussions, we are of the opinion
that the judgment and decree of the Family Court made in
H.M.O.P.No.281 of 2008 and H.M.O.P.No.356 of 2011, dated
15.09.2015. need not be interferred with and the same stands
confirmed. Accordingly, the Civil Miscellaneous Appeals are
dismissed. No costs.
[P.S.N.,J.] & [S.K.,J.]
10.03.2021
Index:Yes/No
Internet:Yes/No
vsn
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
Advocate / litigant
concerned.
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To
1.The Judge,
Family Court,
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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PUSHPA SATHYANARAYANA, J.
AND
S.KANNAMMAL, J.
vsn
COMMON JUDGEMENT MADE IN
C.M.A(MD)NOs.1383 and
1393 of 2015
10.03.2021
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