Jamuna Rani vs Subramaniam
2022 Latest Caselaw 218 Mad

                                                                                      C.M.A.No.1563 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 05.01.2022

                                                        CORAM :

                                       THE HON'BLE MR.JUSTICE T.RAJA
                                                           AND
                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY


                                                  C.M.A.No.1563 of 2020

                Jamuna Rani                                           ... Appellant
                                                          Versus

                Subramaniam                                               ... Respondent

                Prayer : Civil Miscellaneous Appeal has been filed under Section 19 of Family
                Court Act, to allow the above Civil Miscellaneous Appeal, by setting aside the
                fair and decretal order, dated 27.07.2020 passed in H.M.O.P.No.7 of 2020 on
                the file of the Family Court, Tirupur.

                                  For Appellant       : M/s.Dhanwanthi
                                                  for Mr.K.Govi Ganesan

                                  For Respondent     : Mr.S.Thiruvengadam

                                                       JUDGMENT

This Civil Miscellaneous Appeal is filed by the Wife, Jamuna Rani,

aggrieved by the Judgment and Decree of the Family Court, Tiruppur in

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C.M.A.No.1563 of 2020

H.M.O.P. No. 7 of 2020, thereby allowing the petition for divorce filed by the

respondent/husband Mr. Subramaniam, on the ground of cruelty under Section

13 (1) (i-a) of the Hindu Marriage Act, 1955.

2. The case of the respondent/husband is that the marriage between the

parties was solemnized on 13.03.2013 and that they lived together only for a

period of about two months. During this period, the respondent behaved

abnormally and that she was mentally disturbed and would stand all alone

speak loudly, laugh and go out of the house and act as if she was speaking to

somebody. When the husband approached her for physical relationship she

refused by saying that her parents would beat her if he touches her. The

marriage was never consummated and upon confrontation, the wife's parents

took her away from the matrimonial home and thereafter since she did not

return inspite of attempts by the husband, the husband finally issued legal

notice, dated 25.05.2013 and thereafter filed the petition for divorce.

3. The respondent wife, was initially set exparte and with a delay of two

years she filed a petition for setting aside the exparte decree which was allowed

and thereafter she filed a counter denying that she was psychologically

disturbed and submitted that even before the marriage the husband had https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

purchased her a cellphone and both were talking continuously which would go

to show that things were normal between them. Though she behaved like every

other dutiful wife, she was sent back to her parents house and that she was

always willing to live with the petitioner and no grounds exist to dissolve the

marriage between them.

4. Since the efforts of counseling the parties and resolving the

matrimonial conflict did not yield any positive result, the Family Court had no

other option than to proceed with the trial. The husband examined himself as

PW-1 and one Chinanasamy was examined as PW-2 and Exs-P1 – P5 were

marked on his side. The wife examined herself as DW-1 and no documents

were marked on her side.

5. The Family Court, after considering the pleadings of the parties and the

evidence on record, held that non-consummation of marriage even during the

initial period of two months of living together by the parties amounted to cruelty

on the husband. The trial court found that the respondent wife's conduct in

taking contradictory stand in respect of receipt of legal notice and issue of reply

notice making the evidence of the husband reliable. Further her conduct in

admitting that he was in a depressed state and leaving the matter exparte and https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

filing the setting aside application after two years and seeing the husband only

in the Court after 5 years all cumulatively were taken into consideration to hold

that her conduct amounted to cruelty on the husband and the prayer of the

respondent/husband for divorce was granted. Aggrieved by the same, the

present appeal is filed before this Court.

6. Heard Ms. Dhanwanthi, the learned counsel for the appellant and Mr.

S. Thiruvengadam, the Learned Counsel for the respondent. The Learned

Counsel for the appellant would submit that the respondent husband has

miserably failed to prove that the appellant wife had any mental disorder. The

wife got into the box and was cross examined in detail. She was talking to the

husband over phone even before marriage. She had studied upto Diploma in

Teacher Education and there is nothing on record to suggest that she was

suffering from any mental disorder. She was sent back within 60 days and

there is absolutely no ground whatsoever to dissolve the marriage between the

parties who are young and reunion is very much possible and the Family Court

ought not to have granted the divorce.

7. The Learned Counsel for the respondent/husband would submit that

only because all was not well with her, even after the case she was feeling shy to https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

appear before the Court. Further, she was never willing for reunion and already

the husband is greatly prejudiced by her conduct by keep him at bay from 2013

till now. He would submit that in the facts and circumstances of this case, no

fault can be found in the Judgment and Decree of the Family Court.

8. We have given our consideration to the submissions made on behalf of

either side and the pleadings of the parties and the evidence on record. Firstly,

the appellant and the respondent, after the marriage was solemnized on

13.03.2013 at Sukkrieshwarar Temple, Sarkar Periyapalayam, Tiruppur, as per

the Hindu rites and customs lived together only for two months. During this

two months period, it is the specific case of the appellant husband that the

marriage was not consummated. The pleading of the appellant/wife is evasive

in this regard and she did not deny the fact. Therefore, even though there is no

clinching evidence which was let in on behalf of the husband regarding her

psychological condition, this petition is filed only on the cruelty and non-

consummation of marriage even at the start of the marital life by one party

would certainly amount to grave mental cruelty on the other spouse. The

appellant wife was completely evasive in her pleadings on this crucial issue,

amounting to indirect admission and there is not even any pleading that it was

due to the fault of the husband. Therefore, the Family Court was right in https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

holding that the appellants conduct amounted to cruelty.

9. Further, when the respondent-husband herein finding that the appellant

had left the matrimonial home and failed to come back, sent a legal notice dated

25.05.2013, the same was not even responded. When it is the evidence of

P.W.1 respondent that as the acknowledgment card was not received and

therefore, when he lodged a complaint before the postal department regarding

the same, he came to know that the legal notice sent by him to the

respondent/appellant herein was received by her on 27.05.2013 by the letter

received from the Postal Department dated 14.06.2013. The appellant coming to

the witness box before the Family Court as R.W.1 has taken a stand that she

has issued a reply notice. This contradiction is rightly taken into consideration

by the Family Court for believing the oral evidence of the respondent/husband.

10. Thirdly, when the appellant/wife pleaded that she was driven away

from the matrimonial home after two months from the date of marriage,

nowhere she substantiated on what reason or basis she was driven away.

Therefore, the learned trial court has come to the conclusion that she on her own

left the matrimonial home. The Learned Counsel for the respondent-husband

also soliciting our notice to the findings recorded by the trial court in para 9 https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

submitted that it is the self-made evidence of the appellant as R.W.1 that she

was in a depressed state of mind. The learned trial court on perusal of the given

statement came to the conclusion that R.W.1 was in a depressed state of mind.

11. Lastly, the evidence part brought to our notice recorded by the trial

court in the cross-examination of the appellant also shows that after setting the

appellant ex-parte for two years, she did not even take any steps to contact her

counsel. She also admitted that for the first time, she saw the respondent-

husband in the court after a period of 5 years. In the meanwhile she has not

taken any steps for reunion. Therefore, looking at the case at any angle, we do

not disagree with the case of the appellant-wife, because in our view the Family

Court has rightly decreed the Original Petition filed by the respondent husband

for divorce.

12. Therefore, this Civil Miscellaneous Appeal fails and is accordingly

dismissed. However, there will be no order as to costs. Consequently,

C.M.P.No.11550 of 2020 is closed.

(T.R.J.,) (D.B.C.J.,) 05.01.2022

https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

Index : yes Internet : yes Speaking order grs

To

The Family Court, Tirupur.

https://www.mhc.tn.gov.in/judis

C.M.A.No.1563 of 2020

T.RAJA, J.

AND D.BHARATHA CHAKRAVARTHY, J.

grs

C.M.A.No.1563 of 2020

05.01.2022

https://www.mhc.tn.gov.in/judis