Madras High Court
V.Duraivel @ Durai Rajan vs G.Sivagami on 15 November, 2021
CMA Nos.1047 and 1048/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.Nos.1047 and 1048 of 2018 and CMP.No.8488/2018 in
CMA.No.1047/2018
V.Duraivel @ Durai Rajan ... Appellant in both C.M.As.
-vs-
G.Sivagami ... Respondent in both
C.M.As.
Civil Miscellaneous Appeals filed under Section 19 of the Family
Court Act, 1984, against the Common fair and decreetal order dated
02.02.2018 passed in HMOP.Nos.4012 and 3269/2013 by the learned
V Additional Judge, Family Court, Chennai.
For Appellant : Mr.M.Kamaraj
For Respondent : Mr.S.Senthilnathan
https://www.mhc.tn.gov.in/judis
CMA Nos.1047 and 1048/2018
COMMON JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The CMA.No.1047/2018 has been filed challenging the decree
for divorce granted on the petition filed by the respondent-wife under
Section 13(1) (i-a) of the Hindu Marriage Act, 1955, whereas
CMA.No.1048/2018 has been filed challenging the dismissal of the
petition seeking restitution of conjugal rights on the petition filed by
the appellant-husband under Section 9 of the Hindu Marriage Act,
1955, both by a Common fair and decreetal order dated 02.02.2018
passed in HMOP.Nos.4012 and 3269/2013 by the learned V Additional
Judge, Family Court, Chennai.
2. Learned Counsel appearing for the appellant-husband
submitted that the appellant is now aged about 62 years whereas the
respondent-wife is running 56 years. The marriage between the
appellant and the respondent was solemnized on 01.02.1988 at
K.P.Kalyana Mandapam, No.70, Alandur Road, Saidapet, Chennai, in
the presence of both sides' well wishers, family members and friends
as per the Hindu rites and customs and thereafter, they were living
happily at the matrimonial home at Pammal, Chennai, resultantly,
they also had two male children, namely, V.D.Dhandayudhapani, born
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CMA Nos.1047 and 1048/2018
on 07.12.1988 and V.D.Thanigaivel, born on 10.05.1991.
3. Learned Counsel for the appellant further submitted that
it was the respondent-wife, who was adamant and did things on her
own as per her whims and fancies without even consulting the
appellant. Only due to the said nature of the respondent, he was
tortured to a great extent. However, as the passage of time did not
pave any way for improvement, the appellant got frustrated. He was
also running a business in the name and style of 'Sri Venkateswara
Enterprises' and few workers were working in his Firm. His company
is producing subsidiary products for a company called 'M/s.Alsthom'
which is an International Company. In view of the continuous and
good production, he was able to generate reasonable revenue and
support his family for the day-to-day affairs and he was also
educating his children. But all of a sudden, the company M/s.Alsthom
was shifted from Chennai to Coimbatore, as a result, he also migrated
to Coimbatore and started running his small business at No.8/22,
E.R.S. Nagar, Goundampalayam, Coimbatore and taken the
respondent and his children along with him to Coimbatore. After
living with the appellant for some time at Coimbatore, the respondent
moved to her parental place at Chennai in the year 1997 and started
living with her parents permanently. As the parents of the respondent
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CMA Nos.1047 and 1048/2018
are well off, they have taken care of the respondent and his children
and their education. After sometime, the appellant's Company
M/s.Alsthom was shifted to Calcutta. In Calcutta, due to paucity of
funds and language problem, the appellant could not establish his
business, however, as M/s.Alsthom employed the appellant as
supervisor on contract basis, he was in Calcutta only for few years
and due to food and language problems, he was not able to stay in
Calcutta, therefore, he went back to Coimbatore and again moved to
Karnataka. In view of this frequent changes in his working place, the
appellant-husband was unable to come and live with the respondent-
wife and the respondent also refused to come and live with the
appellant in his working place. When the respondent deserted the
appellant and her in-laws from coming home to lead the matrimonial
life, the appellant invited the respondent along with the children, but
the respondent was not paying any heed to his request. Therefore,
the appellant was advised to approach the Family Court seeking
restitution of conjugal rights. Accordingly, he filed a petition under
Section 9 of the Hindu Marriage Act in HMOP.No.3269/2013 before
the I Additional Family Court, Chennai. Subsequently, the respondent
wife filed HMOP.No.4012/2013 before the same court seeking
dissolution of the marriage that took place between them under
Section 13(1)(i-a) of the Hindu Marriage Act, 1955, on the ground of
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CMA Nos.1047 and 1048/2018
cruelty and desertion.
4. Learned Counsel appearing for the appellant also
submitted that when the appellant was originally eking out his
livelihood by working as Supervisor in M/s. Alsthom and as it was
shifted from Chennai to Coimbatore and from Coimbatore to Calcutta
and again from Calcutta to Karnataka, he was unable to stay at one
place which is the only case of the appellant for his movement from
one place to another. Taking advantage of the said fact, the
respondent-wife has filed a petition seeking dissolution of the
marriage on the ground of cruelty and desertion. Even today, the
appellant husband is ready to live with the respondent and his
children.
5. Concluding his arguments, learned Counsel for the
appellant submitted that when the bread winner of the family has to
move at the behest of the employment from Chennai to Coimbatore
where the company was shifted and again from Coimbatore to
Calcutta and once again from Calcutta to Karnataka, it would be very
difficult to give up the job and lead the matrimonial life as the
appellant being the bread winner of the family cannot think of leading
peaceful matrimonial life without employment, therefore, his transfer
as an incident of service, cannot be put against him. Hence, the
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CMA Nos.1047 and 1048/2018
question of desertion ought not to have been found against him, and
it is not his deliberate abandonment of his family. Hence, the
findings and the conclusions reached by the Family Court cannot be
accepted and such a finding is without any justification. Even today,
the appellant is ready to come and live with the respondent-wife and
his children. Further, the appellant was the one who moved the
Family Court seeking restitution of conjugal rights under Section 9 of
the Hindu Marriage Act, 1955. Only thereafter, the respondent has
filed the petition for divorce on the ground of cruelty and desertion.
This clearly shows that the appellant has not deserted the respondent
and his children at any stage. The other side of the appellant could
have also been properly seen by the Family Court. Therefore, the
impugned Common Order granting a decree for dissolution of the
marriage and dismissing the conjugal rights petition have to be set
aside.
6. Opposing the above prayer, learned Counsel for the
respondent-wife argued that although the appellant after marrying
the respondent has got two children, the respondent's family
members have been facing innumerable instances of cruelty coupled
with desertion. The reasonings given by the appellant that only
because of the shifting of the company, namely, M/s. Alsthom from
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CMA Nos.1047 and 1048/2018
Chennai to Coimbatore and then from Coimbatore to Calcutta and
thereafter to Karnataka although appeared to be sound because he
had to follow the dictums made by his employer, at no point of time,
he has taken care of his family. Since the respondent's family
members have extended a timely useful helping hand to the
respondent for running a Mobile Shop when the respondent was not
even a graduate and appears to have studied only upto VIII
Standard, persistently, keeping in mind the future of the innocent
children was able to run the mobile shop and through the earnings,
she has educated the two children and they are now employed as I.T.
Professionals in Bangalore. After knowing the prospects of the family
which had undergone inevitable hurdles during the past 16 years, the
appellant with a view to harvest the hardwork invested by the
respondent in bringing up the family and educating the children has
attempted to come back after 16 years of separation when he has not
even taken any pain or interest to come and see the children and he
has not moved any application seeking the custody of the children.
The absence of any such application clearly shows the bad character
on the side of the appellant that he was a man of opportunity
because when the respondent and her children were seeing the dark
days of life, he has not even moved any oral prayer before the Family
Court praying to grant the relief to see the children. Although he has
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CMA Nos.1047 and 1048/2018
moved an application under Section 9 of the Hindu Marriage Act,
1955 for restitution of conjugal rights, it is not known on what basis
he could maintain that application when he was admittedly moving
from Chennai to Coimbatore and Coimbatore to Calcutta and Calcutta
to Karnataka at the behest of his employer and therefore, he cannot
ask for restitution of conjugal rights as the respondent has already
been taken care of the children by running a mobile shop. Therefore,
the present appeals deserve to be dismissed, he pleaded.
7. This Court frames the following issues for determination:
(i) Whether the findings and conclusions reached by the
Family Court do deserve acceptance?; and
(ii) Any other relief?
8. The learned Family Court, while dealing with this aspect
in Point No.1 whether the wife is entitled for divorce on the ground of
cruelty and desertion, has held clearly in paragraph No.7(iv) that
from 1997 to 2013 i.e. for 16 long years the husband has forgotten
his wife and two children and now he has come forward with a
petition for restitution of conjugal rights stating that he is willing to
take care of them. Therefore, when the Family Court has given a
clear finding that the husband neglected his duty when his assistance
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CMA Nos.1047 and 1048/2018
was needed to the wife and the two growing children, the appellant-
husband explained that he wants to live with his wife and two
children now and the Family Court has wrongly dismissed the plea for
restitution of conjugal rights. Moreover, the appellant also while
being examined before the trial court as P.W.1 has deposed in his
cross-examination that he went to Calcutta without informing his
wife. On this score, admitting his evidence that the respondent wife
has proved the fact before the court that her husband deserted her
for nearly 16 years, the trial court has rightly reached a conclusion to
dissolve the marriage on the ground of desertion. While the appellant
was standing before the court in the witness box as P.W.1 has
admitted that he went to Calcutta without informing his wife.
Therefore, it is not known how he can now plead for interference on
the findings of the trial court. Hence, when the factum of desertion
has been substantially proved before the trial court, we do not find
any error in the said findings.
9. Coming to the second aspect to grant divorce on the ground
of cruelty, learned Counsel for the respondent-wife also argued that
the appellant while staying with the respondent has beaten up the
respondent wife. No doubt, the parties are living separately for more
than a decade and the findings of desertion is accepted. While so,
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CMA Nos.1047 and 1048/2018
coming to the allegation of cruelty to invoke a decree of dissolution of
marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 on
the ground that the husband has beaten up his wife is untenable.
When it is the allegation made by the wife that her husband had left
the home and he has not visited the family, it is difficult to accept the
allegation that he had beaten up his wife. Besides, it appears that
the appellant has miserably failed to take care of the respondent and
his children for 16 long years. Further, when the children of the
respondent are now well placed in I.T. field, the question of accepting
the appellant as their father lies only at their hands. If both the
children, in their wisdom, persuade their mother to accept for reunion
of their father and mother, then no one can stop such a decision.
Therefore, leaving the decision to their wisdom, we refrain from
making any remarks thereof. However, we make it clear that the
ground of cruelty raised under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955 fails. Accordingly, the issues are jointly
answered.
10. In the result, both these Civil Miscellaneous Appeals fail
and the same are accordingly dismissed thereby confirming the
common fair and decreetal order of the learned V Additional Judge,
Family Court, Chennai passed in HMOP.Nos.4012 and 3269/2013
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CMA Nos.1047 and 1048/2018
dated 02.02.2018. No costs. Consequently, connected Miscellaneous
Petition is closed.
(T.R.J.,) (D.B.C.J.,)
tsi 15.11.2021
To
The V Additional Judge, Family Court, Chennai.
https://www.mhc.tn.gov.in/judis
CMA Nos.1047 and 1048/2018
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
C.M.A.Nos.1047 and 1048 of 2018
15.11.2021
https://www.mhc.tn.gov.in/judis
CMA Nos.1047 and 1048/2018
https://www.mhc.tn.gov.in/judis
