Madras High Court
Karthikeyan Kumar vs U.Subashini on 3 February, 2022
CMA.Nos.878 and 879 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :03.02.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
CMA.Nos.878 and 879 of 2017
Karthikeyan Kumar ... Appellant in both C.M.As.
-vs-
U.Subashini ... Respondent in both
C.M.As.
Civil Miscellaneous Appeals filed under Section 19 of the Family
Courts Act against the Common fair and decreetal order dated
05.01.2017 passed in O.P.Nos.243/2015 and 2687/2016 by the
learned II Additional Principal Judge, II Additional Family Court,
Chennai.
In both C.M.As.
For Appellant : Mr.M.Vijay Anand
For Respondent : Mr.K.S.Jeyaganeshan
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CMA.Nos.878 and 879 of 2017
COMMON JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
Both these Civil Miscellaneous Appeals have been directed
against the Common fair and decreetal order dated 05.01.2017
passed in O.P.Nos.243/2015 and 2687/2016 in and by which the
learned II Additional Principal Judge, II Additional Family Court,
Chennai, while dismissing the Original Petition filed for seeking
dissolution of the marriage by the appellant-husband under Section
13(1)(i-a) of the Hindu Marriage Act, 1955, allowed the Original
Petition filed by the respondent-wife seeking restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, 1955.
2. The case of the appellant is that the marriage between
the appellant and the respondent was solemnized on 15.9.2013 at
Karur Punnam Sri Angala Parameswari Sannidhanam as per the Hindu
rites and customs in the presence of the friends and well wishers of
both the families. The father of the appellant is a businessman
dealing with textiles and mother is a house wife and they are living in
a joint family system, consisting of the appellant and his younger
sister. He has also completed his B.E. and also did his MBA from
Scotland University. Finally, at the time when the respondent-wife
was doing her B.Tech. (I.T.) at Vivekananda College near Namakkal,
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the marriage alliance was finalised. Accordingly, the marriage was
solemnized. At the time of the marriage, as the respondent was
doing her second year B.Tech., the appellant-husband has taken
initiative to transfer her course from Namakkal to Chennai, and got
admission in Meenakshi Sundararajan Engineering College at Chennai
and after transfer, the appellant-husband also paid a sum of
Rs.1,35,000/- towards tuition fees. Thereafter, the engagement took
place on 03.06.2013. The respondent joined the college at Chennai
and stayed in a hostel till she got married. Thereafter, the marriage
reception took place on 14.09.2013 at Lakshmi Thirumana Mandapam
at Pallipalayam, Erode and on the next day on 15.09.2013, the
marriage was held at Karur Punnam Sri Angala Parameswari
Sannidhanam as mentioned above. Again on 18.09.2013, a reception
was held at Hotel Jaya Pushpam, Koyambedu, Chennai.
3. The further case of the appellant is that after three days
from the date of the marriage, the respondent-wife started behaving
differently showing her unadjustment problem with the family
members of the appellant-husband, even in the day-to-day activities
right from not keeping the room clean, not taking bath regularly and
winding her hairs all around the room, putting her clothes in a shabby
manner and not helping the family members to prepare food. Taking
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CMA.Nos.878 and 879 of 2017
sympathy and considering the age of the respondent-wife, the
appellant's mother used to do all the works including cleaning the
rooms, toilets and even washing the clothes of the respondent and to
pack the lunch for the respondent as she was also going to the
College. One day when she was coming with a shabby dress by
exposing herself in front of the family members as they are living in a
joint family, she was advised to avoid wearing such unwanted
dresses, she has created some problem in the family and started
fighting with the appellant-husband and also with the other family
members for no reason instead of correcting her. That apart, she has
also used abusive and unparliamentary language which no normal
person would use it in a family.
4. It is also the case of the appellant that at one point of
time, the respondent-wife insisted upon the appellant to set up a
separate family leaving the joint family. As the family was heavily
depending on his guidance and financial support, this was not
accepted by the appellant. When this message was communicated to
the respondent, the respondent's father, who was very adamant,
went to file a complaint against the appellant and his family members
alleging a false allegation of dowry harassment. The police also
conducted an enquiry and finally, advised both the parties to go for
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CMA.Nos.878 and 879 of 2017
counselling at AVM Charities Hospital at Vadapalani, Chennai and the
Police Officer also took a letter from the appellant forcibly stating that
by September, 2014, he would take a separate accommodation
leaving his own family members. Not being satisfied with the said
letter, the respondent's father also asked for return of all the
stridhana articles and accordingly, a list was prepared and the entire
articles were returned to the respondent in front of the police
personnel. The respondent's father used to inform the appellant
stating that he has got a political influence and he would not allow
the appellant to live in peace unless he sets up a separate family.
Since the problem has gone beyond his control and the appellant and
his family members were put to mental agony and cruelty, the
appellant filed a Original Petition in O.P.No.243/2015 before the
learned II Additional Family Court, Chennai in July 2014 seeking
divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
5. A detailed counter affidavit has been filed by the
respondent-wife denying all the averments. During the pendency of
this Original Petition, the respondent-wife also filed
O.P.No.2687/2016 under Section 9 of the Hindu Marriage Act, 1955,
seeking restitution of conjugal rights. The trial court taking up both
the matters together, disbelieving the case of the appellant for
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CMA.Nos.878 and 879 of 2017
divorce dismissed the same whereas, accepting the case of the
respondent-wife, allowed the petition for restitution of conjugal
rights. Aggrieved by the impugned common order passed by the
Family Court, the appellant-husband has brought up both these
appeals.
6. Learned Counsel appearing for the appellant-husband
would submit that the appellant is a B.E. Graduate and also obtained
MBA Degree from Scotland University. As he has been working in a
private concern, his marriage was fixed with the respondent when
she was doing her II year B.Tech. Course in Vivekananda College
near Namakkal. Since the appellant, taking into account the fact that
her studies should be continued even after the marriage, has taken
initiative to transfer her course from Namakkal to Chennai, and got
admission in Meenakshi Sundararajan Engineering College at Chennai
and after transfer, the appellant-husband also paid a sum of
Rs.1,35,000/- towards tuition fees. Thereafter, the engagement took
place on 3.06.2013. The respondent joined the college at Chennai
and stayed in a hostel till she got married. After the marriage was
solemnized on 15.09.2013 at Karur Punnam Sri Angala Parameswari
Sannidhanam, they were leading a smooth life for few days only.
After 3 days from the date of the marriage, the respondent was not
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CMA.Nos.878 and 879 of 2017
showing any response in keeping the house in order. At one point of
time, without any ground or reason or justification, she went to the
police station at the instance of her father requesting the police
people to hold enquiry against the appellant who is working in a
Private Concern and also his family members.
7. Learned Counsel for the appellant would further submit
that when the appellant and his family members are all happily
leading a peaceful life, after the marriage with the respondent, she
was advised to wear a decent dress as children and elderly people
and guests are visiting the appellant's family. This was mistaken by
the respondent for which she went to the police station along with her
father and the police officer also summoned the appellant and his
family members to the police station and after giving advise and
counselling forcibly, they took out a letter in which coercively an
undertaking was taken from the appellant that from September,
2014, he would set up a separate accommodation leaving his family
members. This was not accepted either by the appellant or by his
family members. The very bad attitude of the respondent in
demolishing the well going joint family could be seen as she has also
removed all her articles from the appellant's house that shows that
she was interested in setting up a separate family and not ready to
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live with the appellant in the joint family that could be seen from the
approach adopted by the respondent and his family members by
visiting the police station and taking forcibly a letter to set up a
separate family by September, 2014 and taking out all the articles
brought by her.
8. Learned Counsel for the appellant would also submit that
when the appellant and his family members were frequently harassed
for no reason, the peace in the joint family was put to struck
permanently due to the indifferent conduct made by the respondent
and his family members and dragging the appellant's family members
to the police station would definitely amount to cruelty. This cannot
be lightly dealt with by the Family Court by dismissing the Original
Petition filed by the appellant seeking a decree for divorce. The
respondent-wife filed a counter affidavit in the main Original Petition
on 26.01.2016 and after some time she filed HMOP.No.2687/2016
under Section 9 of the Hindu Marriage Act, 1955 seeking restitution
of conjugal rights. When the O.P.No.243/2015 was filed in the month
of July, 2014 by the appellant-husband seeking divorce, after the
filing of a detailed counter affidavit on 26.01.2016, she was advised
to file Section 9 Application on 14.07.2016 almost two years after
filing the Original Petition which is an afterthought that also shows
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that she was not ready for restitution of conjugal rights. When a case
is made out that the respondent has gone to the police station
dragging the appellant and his family members who has been
working in a private company and he was not able to go to office and
the tension and problems created by the respondent is having direct
impact on the performance of the appellant, the continuance of the
marital tie would definitely create a problem in his employment and
that would affect the livelihood of the appellant and his family
members. Therefore, the marriage solemnized on 15.09.2013
between the parties shall be dissolved for the mental cruelty and
agony caused by the respondent to the appellant and his family
members by dismissing the Section 9 Application as no case is made
out, it is pleaded.
9. Learned Counsel for the respondent would submit that the
appellant has come to this Court without there being any good cause,
challenging the well reasoned impugned fair and decreetal order
made by the Family Court refusing to grant a decree for divorce and
directing both the parties to resume the marital life. In support of his
submission, the learned Counsel for the respondent referring to a
copy of C.S.R.-Ex.R.1 dated 28.03.2014 for the complaint given by
the respondent before the W27, All Women Police Station,
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Vadapalani, Chennai, submitted that even that complaint was not
given by the respondent, it was given only by her father. Although
the respondent's name has been shown as complainant, it cannot be
mistaken that the respondent has gone to the police station. The
father of the respondent taking into account that there has been
harassment for no reason by the appellant only to resolve the issue,
the complaint was given to the police station. A reading of the
complaint also does not disclose any harassment. Therefore, the
learned Family Court has rightly come to the conclusion that the
appellant has miserably failed to make out a case for passing a
decree for divorce.
10. But we are not able to accept the said argument of the
learned Counsel for the respondent-wife. The reasons being that
firstly, a perusal of Ex.R.1 shows that the respondent U.Subashini,
D/o.S.Umapathy has given a complaint on 28.03.2014 before the
W.23 All Women Police Station, Vadapalani, Chennai wherein she has
mentioned that her husband having secured B.E. and M.B.A. has been
doing construction business and working in a Construction Company.
As she has married to the appellant in a joint family, either the
appellant's elder brother or younger brother on some pretext or other
is harassing her. Therefore, she made a request to the Police Officer
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in W.23 All Women Police Station to summon the appellant and his
family members to advise them. A reading of the complaint further
shows that she has not mentioned any specific instances as to when
she was harassed by her husband or by anyone of the family and no
specific name has been mentioned and no incident of cruelty or
untoward incident in which she has put to face difficult situation has
been narrated. When the complaint says that she has visited the
police station for no reason, the argument advanced by the learned
Counsel for the appellant that the appellant who is a B.E. and MBA
degree holder obtained from Scotland University has been put to face
untold harassment by her, as a result, he is not able to show
seriousness and devotion on his job, require to be accepted.
Secondly, when the complaint dated 28.03.2014 was taken up by the
aforesaid police station, an undertaking was also obtained from the
appellant that by September, 2014, he should set up a separate
family leaving the joint family. Thirdly, her immediate collection of
the articles brought from her home, namely, dresses etc. from the
matrimonial home clearly shows that she wanted to set up a
separate family that would definitely lead to disintegration of the joint
family that shall be considered as aground for cruelty for which the
learned Family Court ought to have decreed the petition filed for
dissolution of the marriage which has not been done so.
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11. Finally, we have also asked both parties to come to Our
Chamber to resolve the disputes between them keeping in mind that
they are young couple. When both the appellant and the respondent
visited our Chamber on 20.12.2021 at 2.15 p.m. and after spending
substantial time with both parties, we were able to see that the
appellant has lost his interest to live with the respondent, in fact
when both of them were sent for mediation, the mediation report also
reveals that parties were unable to arrive at an amicable settlement.
That apart, it appears that both of them were sent for psychological
counselling. The conclusions reached by Mr.B.Sudhakaran, Assistant
Professor-cum-Clinical Psychologist, Department of Clinical
Psychology, Institute of Mental Health, Medavakkam Tank Road,
Kilpauk, Chennai-10 in respect of the appellant-husband and
respondent-wife are also extracted here under:
''TEST FINDINGS of the appellant-husband:
The counselling session with the patient summarize
that the patient expressed extreme discontent and
disinterest towards reconciliation. In the counselling
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sessions, he reported that he detests the idea of
reconciliation and believes that the patient and his wife
are two separate people and do not have compatibility at
all. When he was asked to enlist the consequences of
seeking a divorce, he expressed that he is aware of the
consequences but he is ready to seek divorce as he feels
he can never think of living with his wife again.
The test findings also suggest that he expressed
dejection and dissatisfaction towards his marital life. On
marital questionnaire, the patient has low scores on all
the adjustment scales indicative of poor adjustment and
dissatisfaction towards marital life. On Neo-ffi, his
personality findings revealed that he has a high score on
conscientiousness and extra-version, which indicates that
patient likes to be outgoing and self disciplined. There
were no deviant findings with regard to his personality.
IMPRESSION
Based on the counselling sessions and brief
psychometric assessment, the client seems to be having a
highly conscientiousness type of personality. No
significant pathological findings were observed at present.
There were no deviant findings with regard to his
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personality. However the patient expressed
dissatisfaction towards his marital life and clearly looking
forward for separation.''
''Test Findings of the respondent-wife :
On NEO-FFI, the patient has obtained average
scores on Neuroticism, Openness and on Agreeableness.
She has obtained low scores o n Extraversion and on
Conscientiousness.
The patient is described as Average range in the
Neuroticism. This clearly indicates that she is average in
her emotional stability. She experiences normal amount of
psychological distress and has a typical balance between
satisfaction and dissatisfaction in life. She is neither high
nor low in self-esteem. Her ability to deal with stress is
as good as an average person.
The patient is rated in the Low range in the
Extraversion. This clearly indicates that she values both
the new and the familiar. She has average degree of
sensitivity. She is willing to consider ideas in new
occasions but she does not seek novelty for its own sake.
She is described as average in imagination and creativity.
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The person is rated in the Average range in the
Agreeableness. This clearly indicates that she is a
good-natured person. She can be sympathetic and at the
same time can be firm. She is ready to compete as well
as co-operate with others.
She is rated in the Low range in the
Conscientiousness. This clearly indicates that she is
lacking in self-control, unable to resist impulses and
temptations. She is poor in planning, organizing and
carrying out tasks. Due to this, she may be having
interpersonal conflicts with her social relationships and
interactions.
On SSI, the patient has not obtained significant
scores on any of the subscales, which indicates that the
patient does not have psychopathological symptoms at
present.
On MAQ, the patient has obtained a total score of
16. She has expressed maximum adjustment in the area
of sexual relationship and emotional adjustment.
On Rorschach Inkblot Test, the patient has given
a total of 20 responses suggestive of average number of
responses with average mentation. The responses are of
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mediocre form level rating. She has given 3 popular
responses with average form-level rating. During testing
of limits, the patient was able to perceive 3 popular
response, suggestive of being in touch with reality. D%
of 55% with mediocre-form level suggests that the
suggests the person sticks to the practical everyday,
common-sense view of things. The lack of adequate
whole responses reveals that she has concrete view of
day-to-day life on situational basis rather lacks long-term
understanding and coping with the environment. F% of
20% indicates that she has the ability to view the world in
an impersonal matter of fact way which serves as a
controlled adjustment. FM>2M suggests that the
individual is ruled by immediate gratification of needs
rather than by long-range goals. On content analysis, the
patient has predominantly given animal responses
suggesting that there could be disturbed adjustment and
immaturity in her analysis about social situations and
emotional reactions towards them.
Impression:
Ms.Subhashini, 26 year old female is presently with
adequate cognitive abilities based on her professional
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educational qualification and employed in an IT company
for the past 5 years. Her overall behaviour during the
entire counselling sessions showed that she has atleast an
average intellectual capacity. The current psychometric
evaluation of the patient showed that she has introvert
type of personality with emotional impulsivity with poor
control over emotionally charges situations, however,
when provoked she lacks control over her emotions and
interactive patterns. No other significant pathologial
disturbance of psychological or psychiatric nature is
elicited at present. She also strongly expresses that her
spouse is being strongly influenced by his family
members making him to look forward for legal
separation.''
In view of the above, we are able to see that they may not be
able to go together. Therefore, as they are living separately for 9
long years and the case of cruelty has been made out by the
appellant-husband against the respondent-wife, the marriage
solemnized on 15.9.2013 between them is dissolved and a decree
for divorce is granted for the reasons mentioned above thereby
reversing the findings and conclusions reached by the Family Court
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thereby allowing the restitution of conjugal rights petition and
dismissing the petition seeking divorce.
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
12. In the result, both these Civil Miscellaneous Appeals are
allowed. No costs.
(T.R.J.,) (D.B.C.J.,)
03.02.2022
tsi
To
The II Additional Principal Judge, II Additional Family Court, Chennai.
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CMA.Nos.878 and 879 of 2017
CMA.Nos.878 and 879 of 2017
03.02.2022
https://www.mhc.tn.gov.in/judis
