Madras High Court
Loganathan vs Selvarani on 1 February, 2022
C.M.A.No.37 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2022
CORAM :
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.37 of 2020
Loganathan ... Appellant
Versus
Selvarani ... Respondent
Prayer : Civil Miscellaneous Appeal has been filed under Section 19 of Family
Court Act, to set aside the order and decree, dated 29.07.2019 made in
F.C.O.P.No.99 of 2018, on the file of the Family Court, Vellore, Vellore
District, by allowing the present Civil Miscellaneous Appeal.
For Appellant : Mrs.Poornima Ramamurthy
for Mr.R.Ramesh
For Respondent : Mr.A.Gouthaman
JUDGMENT
This Civil Miscellaneous Appeal in C.M.A.No.37 of 2020 is filed by
Loganathan, the husband, aggrieved by the fair and decretal order of the Family
Court, Vellore in F.C.O.P.No.99 of 2018, dated 29.07.2019, thereby, the
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C.M.A.No.37 of 2020
petition for divorce filed by the appellant under Section 13(1)(i-b) of the Hindu
Marriage Act that the respondent/wife has deserted him and under Section
13(1-A)(ii) of the Hindu Marriage Act on the ground that inspite of the order
passed in restitution of conjugal rights petition, the respondent did not join the
matrimonial home.
2. The case in brief of the appellant before the Trial Court is that there
were earlier proceedings between the parties, whereby, the appellant had filed
F.C.O.P.No.187 of 2014 before the very same Family Court, Vellore for
dissolution of the marriage on the ground of the cruelty. The respondent/wife
had filed F.C.O.P.No.228 of 2014 for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act. Both the said petitions were taken up
together and after trial, by a judgment, dated 16.11.2016, the petition filed by
the appellant/husband for divorce was dismissed and the petition filed by the
respondent/wife for restitution of conjugal rights was allowed. Even though the
said decree was passed on 16.11.2016, till the filing of the present petition on
16.04.2018, the respondent/wife did not join the appellant/husband in the
matrimonial home and therefore, her conduct, first, amounts to desertion for a
period of two years; and second, that her conduct is violative of the restitution
of the conjugal rights decree between the parties and therefore, this present
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C.M.A.No.37 of 2020
petition was filed by the appellant/husband both under Section 13(1)(i-b) and
13(1-A)(ii) of the Hindu Marriage Act praying to dissolve the marriage
between him and the respondent.
3. The respondent/wife resisted the said petition by filing a counter
affidavit that in the earlier proceedings that the Court has already found her
evidence that he was in a relationship with one Vanitha of Nayakkaneri village
and only on account of the same, he is not taking the respondent/wife to the
matrimonial home. In view of the same, the second petition, alleging the
desertion is not maintainable. As far as the decree of the restitution of conjugal
rights is concerned, it is only the appellant/husband who has failed and
neglected to take her back and live with her and therefore, she prayed for
dismissal of the petition.
4. Unable to find any resolution through counseling, the learned Family
Court, Vellore took up the matter for trial and the petitioner examined himself
as P.W.1 and Exs.P-1 to P-9 were marked. The respondent examined herself as
R.W.1 and no documents were marked on her behalf. After considering the
evidence on record, by a judgment, dated 29.07.2019, the learned Family Court,
Vellore found that in view of the earlier proceedings finding fault against the
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C.M.A.No.37 of 2020
petitioner/husband that the divorce was dismissed; and without taking any steps
to comply with the earlier order passed in the petition for restitution of conjugal
rights, he has approached Court by way of the present petition. The Trial Court
specifically found that there was no evidence produced on the side of the
petitioner to demonstrate the steps taken by him to join with the respondent
wife in the matrimonial home. The Trial Court also found that he did not even
issue a notice to his wife to come and live along with him. Therefore, seeing no
merits in his prayer, the Trial Court dismissed the petition, aggrieved by which,
the present appeal is laid before this Court.
5. Heard Mrs.Poornima Ramamurthy, learned Counsel appearing on
behalf of the appellant/husband and Mr.A.Gouthaman, learned Counsel
appearing on behalf of the respondent/wife. We have perused the pleadings of
the parties, oral and documentary evidence on record, the findings of the Trial
Court.
6. Mrs.Poornima Ramamurthy, the learned Counsel appearing on behalf
of the appellant would contend that the decree was passed on the petition of the
wife for restitution of conjugal rights and it is for her to take steps to join the
appellant/husband and because she has not taken any steps to join the
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C.M.A.No.37 of 2020
appellant/husband, the prayer of the appellant/husband has to be allowed.
7. But, however, we are unable to agree with her submissions. The
decree passed by the Family Court, in the earlier F.C.O.P.No.228 of 2014 reads
as follows:-
“1. That the Petition is be and the same is hereby
allowed.
2. That the Respondent/husband is hereby
directed to rejoin with his wife to take her to be
matrimonial home within one month from the
date of this order.”
Therefore, the contention of the learned Counsel for the
appellant/husband as if the direction is given to the respondent/wife to join her
husband is factually incorrect and the decree was directed against the appellant
to rejoin her wife within one month from the date of the decree. In the teeth of
the said decree, the evidence of the appellant/husband before the Trial Court
reads as follows:-
“me;j ,U kDf;fspYk;
gpwg;gpf;fgl;l cj;jut[ epiyahdJ
vd;why; rupjhd;/ vd; kidtpia ehd;
vd;Dld; miHj;Jr;brd;W FLk;gk;
elj;;jntz;Lk; vd;W cj;jutplg;gl;lJ
vd;why; mij ehd; goj;J
ghu;f;ftpy;iy”
“ehd; vd; kidtpia te;J thH
brhy;yp miHj;njdh vd;why; ehDk;
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C.M.A.No.37 of 2020
miHf;ftpy;iy mtUk; tutpy;iy”
8. Therefore, there was absolutely no cause of action for the petitioner to
file the present petition. As rightly pointed out by the Trial Court, he neither
took any steps nor issue any notice to bring back the respondent/wife.
Therefore, the Trial Court has rightly denied his prayer for divorce on the
ground of desertion and on the ground of the violation of restitution of conjugal
rights order.
9. We therefore find no merits whatsoever in the Civil Miscellaneous
Appeal and hence, the same is dismissed. There shall be no order as to costs.
(T.R.J.,) (D.B.C.J.,)
01.02.2022
Index : yes/no
Internet : yes/no
Speaking/Non-speaking order
grs
To
The Family Court, Vellore, Vellore District.
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C.M.A.No.37 of 2020
T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
grs
C.M.A.No.37 of 2020
01.02.2022
https://www.mhc.tn.gov.in/judis
