Madras High Court
A.M.Suresh vs D.Lakshmi on 23 November, 2021
CMA Nos.21 and 22/ 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.Nos.21 and 22/2017 and CMP.Nos.117 and 118/2017
A.M.Suresh ... Appellant
-vs-
D.Lakshmi ... Respondent
Civil Miscellaneous Appeals filed under Section 19 of the Family
Court Act, 1984, against the Fair and decreetal orders passed by the
learned Principal Judge, Principal Family Court, Chennai, in
O.P.Nos.2030/2009 and 3340/2013 dated 15.11.2016.
For Appellant : Mr.S.Ilamvaludhi
For Respondent : Ms.C.Shyamala
https://www.mhc.tn.gov.in/judis
CMA Nos.21 and 22/ 2017
COMMON JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The CMA No.21/2017 has been filed by the appellant-husband,
challenging the fair and decreetal order dated 15.11.2016 passed in
HMOP.No.2030/2009 by the learned Principal Judge, Principal Family
Court, Chennai, refusing to grant divorce under Section 13(1)(i-a) of
the Hindu Marriage Act, 1955, as prayed for by the appellant-husband
whereas CMA.No.22/2017 has been filed by the appellant-husband,
challenging the fair and decreetal order dated 15.11.2016 passed in
HMOP.No.3340/2013 thereby allowing the petition seeking restitution
of conjugal rights filed under Section 9 of the Hindu Marriage Act,
1955 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 01.02.2008 at PSD Kalyana
Mandapam, West Saidapet, Chennai-600 015 as per the Hindu rites
and customs in the presence of the elders of both the families and
after the said wedlock, both the parties were happy and their
matrimonial life was also started in the appellant's house where the
appellant has been living with his widow mother. In the beginning,
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CMA Nos.21 and 22/ 2017
the respondent behaved normally with affection and she was taking
care of the family. Immediately after few days, the respondent
started showing her true colour that sudden change on her behavour
occurred within two weeks from the date of the marriage and the
words and deeds used by the respondent were abusive and explosive.
Always, she was money oriented and showing her unusual behaviour
because she was acting as per the instigation of her brother and she
was not giving any positive response to the appellant's requests to
put the house in order. Therefore, the appellant found it very difficult
to coup up with the torture the respondent has levelled against him
and his family members, however, the appellant was adjusting her
hoping that things would come back to normal. Finally, the
respondent-wife herself left the matrimonial home during the 2nd
week of March, 2009. Thereafter, the respondent and his brother
used to threaten the appellant that they would approach the
Commissioner of Police and file a complaint against them on the
ground that they were demanding dowry, as a result, the appellant
was put to face severe mental agony. Therefore, he issued a lawyer's
notice during the 1st week of May, 2009 that was also served on her.
Finding no response for the same, the appellant left with no other
option, approached the Principal Family Court, Chennai, seeking a
Decree for Divorce under Section 13(1)(i-a) of the Hindu Marriage
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CMA Nos.21 and 22/ 2017
Act, 1955 on the ground of cruelty.
3. A detailed counter affidavit was filed denying all the
allegations and after the pleadings on both sides were completed, the
Family Court took up the matter for trial. Though averments were
made by the appellant-husband to justify the allegation of cruelty
caused to them, disbelieving the same, the learned Family Court
dismissed the HMOP filed by the appellant-husband seeking divorce
and allowed the HMOP filed by the respondent-wife seeking
restitution of conjugal rights. Therefore, the appellant-husband is
before this Court with these Civil Miscellaneous Appeals.
4. Learned Counsel appearing for the appellant contended
that it is an admitted case that since the parties got married on
01.02.2008 and within few months, they were separated and the
appellant has been serving only as a Cashier at Prakash Foods and
Feed Mills Private Limited, Prakash Towers, No.1, Mettukuppam Main
Road, 3rd Floor, Maduravoyal, Chennai-600 095 and eking out his
livelihood with a meagre monthly salary of Rs.15,952/- after
deduction of Rs.1,048/-, he finds it difficult to meet out the litigation
expenses and also the maintenance of his day-to-day affairs including
his widow mother. Therefore, the learned Counsel for the appellant
submitted that when the husband and wife have been living
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CMA Nos.21 and 22/ 2017
separately from 2008 onwards, within a short while from the date of
marriage, they have lost the prime age to live, entertain, recreate
and procreate. Now, they are aged about 53 and 50 respectively.
Hence, the appellant is prepared to pay a reasonable permanent
alimony to the respondent under Section 25 of the Hindu Marriage
Act, 1955 and accepting the reasonable permanent alimony, the
marriage solemnized between the parties on 01.02.2008 can be
dissolved and decree for divorce can be granted, he pleaded.
5. Opposing heavily the above submissions made by the
learned Counsel for the appellant, learned Counsel for the
respondent-wife replied that the poor lady-respondent was
unnecessarily put to face innumerable problems at the hands of the
appellant and his family members within few weeks from the date of
the marriage and the misunderstanding that cropped up on frivolous
grounds has been blown out of proposition by the appellant, as a
result, she was driven out to her parental home. When the appellant
was not coming to her parental home to take her back to matrimonial
home, the respondent's elder brother took her back to the
matrimonial home. Again due to the continuous non-co-operation of
the appellant to lead the matrimonial life, the respondent was driven
away from the matrimonial home. Therefore, the fault does not lie on
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CMA Nos.21 and 22/ 2017
the respondent for leaving the matrimonial home. It is, only the
appellant, who was responsible for driving her out from the
matrimonial home to her parental home, therefore, the question of
desertion does not arise. Hence the relief sought for by the appellant
under Section 13(1)(i-a) of the Hindu Marriage Act, 1958 on the
ground of cruelty has rightly been disbelieved by the Family Court.
Therefore, the passage of time cannot be taken as a ground for
dissolution of the marriage.
6. Learned Counsel for the respondent-wife further
contended that when the respondent has also brought 25 sovereigns
of gold, besides, 5 more sovereigns in the form of bracelets were
gifted to the appellant, but the same have not been returned.
Therefore, these jewels also have to be returned, if the appellant is
concerned only for getting a decree of divorce subject to the payment
of reasonable permanent alimony.
7. We have carefully gone through the typed set of papers
including the findings and conclusions reached by the learned Family
Court below.
8. The following two issues arise for consideration:
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CMA Nos.21 and 22/ 2017
a. Whether the parties lived shortly in the matrimonial
family, can ask for divorce? and
b. Whether any threat by a wife that she would go to police
station to lodge a criminal complaint against husband and his family
members would amount to mental cruelty?
9. Admittedly, three things were emerged before us for
consideration. Firstly, when the marriage took place between the
parties on 01.02.2008 at PSD Kalyana Mandapam, West Saidapet,
Chennai-600 015, as per the Hindu rites and customs in the presence
of the elders of both the families, they lived together only for few
weeks. Thereafter, both started making allegations against each
other justifying their separation. But the facts of the matter would
show that the respondent came to her parental home in the second
week of March, 2009 and thereafter, they have not reunited. Even
the consummation of the marriage has not been substantiated before
us. Therefore, the appellant-husband has approached the Family
Court seeking divorce citing various reasons. One among them is
that the respondent-wife was all the time threatening the appellant
that she would commit suicide by jumping from the upstairs or fall in
front of the train in the track, but it appears that no evidence has
been placed before the trial court. But now one thing is very clear
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CMA Nos.21 and 22/ 2017
that they have been living separately for the past 12 years. Hence
the first issue is answered accordingly.
10. Secondly, though the allegation of threat said to have
been made by the respondent that she would go to the police station
and make a false complaint and that the appellant and his widow
mother would be taken into the police station and resultantly put
them to jail, the same has been emphatically pleaded in the petition
and also in the proof affidavit filed, no doubt, these are all matters
difficult to be established by the parties concerned. What is
happening within the four walls of the room cannot be substantiated
at all the times. But the evidence of their separation clearly shows
that they have passed through the matrimonial life with great
difficulty for about 12 years. In this regard, it is pertinent to rely on
the evidence of CW1 J.Shanthi attached with Indian Red Cross
Society, Tamil Nadu Branch, Family Counselling Centre, recorded on
19.04.2015 by the Family Court in H.M.O.P.No.3340/2013 who
deposed that she had three counselling sittings with the parties and
after conversing and discussing with them in detail, she found that
the parties have set up their mind for not living together and
accordingly, gave a report Ex.P.4 stating that both of them were not
able to continue the matrimonial life. Therefore, when the act of both
the appellant and the respondent demonstrated before us that they
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CMA Nos.21 and 22/ 2017
were not able to live together within few weeks form the date of
marriage and this has been rightly deposed by the C.W.1 before the
Family Court, the case of the appellant could have been accepted for
dissolution of marriage. But as this has been overlooked, we are of
the considered view that the findings and conclusions reached by the
learned Family Court are liable to be set aside. Accordingly, the
second issue is answered in favour of the appellant.
11. Thirdly, coming to the payment of permanent alimony
under Section 25 of the Hindu Marriage Act, 1955, as we have
already held, the appellant after deduction is only getting a sum of
Rs.15,952/- towards monthly salary by working as Cashier in
Prakash Foods and Feed Mills Private Limited, Prakash Towers,
Mettukuppam Main Road, Maduravoyal, Chennai and as he is now
aged about 53 years and scheduled for superannuation at the age of
58 years, we are of the considered view that he shall pay a sum of
Rs.6,00,000/- (Rupees Six Lakhs Only) towards permanent alimony.
Therefore, on the last occasion, we have instructed the learned
Counsel for the appellant to bring a cheque for Rs.6,00,000/-. To-
day, the learned Counsel for the appellant husband brought two
Demand Drafts one for a sum of Rs.5,00,000/- (Rupees Five Lakhs
Only) dated 20.11.2021 and another for a sum of Rs.1,00,000/-
https://www.mhc.tn.gov.in/judis
CMA Nos.21 and 22/ 2017
(Rupees One Lakh Only) dated 20.11.2021 and the same were
accepted by the learned Counsel for the respondent and she has also
made an endorsement to that effect.
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
The same was recorded.
12. In view of all the above, both the Civil Miscellaneous
Appeals are allowed thereby dissolving the marriage between the
appellant and the respondent that took place on 01.02.2008 and a
decree for divorce is granted. No costs. Consequently, connected
Miscellaneous Petitions are closed.
(T.R.J.,) (D.B.C.J.,)
23.11.2021
Note : Issue order copy on 04.01.2022
To
The Principal Judge, Principal Family Court, Chennai.
https://www.mhc.tn.gov.in/judis
CMA Nos.21 and 22/ 2017
C.M.A.Nos.21 and 22 of 2017
https://www.mhc.tn.gov.in/judis
