Madras High Court
S.Dhamodharakumar vs Karthiga on 10 January, 2022
C.M.A.No.3709 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.01.2022
CORAM :
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.3709 of 2021
S.Dhamodharakumar ... Appellant
Versus
Karthiga ... Respondent
Prayer : Civil Miscellaneous Appeal has been filed under Section 19 of Family
Court Act, to set aside the order made in F.C.O.P.No.480 of 2018 on the file of
the Family Court, Salem, dated 01.11.2021.
For Appellant : Mr.K.A.Ravindran
JUDGMENT
(Judgment of this Court made by Mr.Justice D.Bharatha Chakaravarthy)
This appeal in C.M.A.No.3709 of 2021 is filed by the appellant/husband,
namely S.Dhamodharakumar, aggrieved by the judgment and decree of the
Family Court, Salem in F.C.O.P.No.480 of 2018, thereby, granting a decree of
divorce on the petition filed by the respondent/wife under Section 13(1) (i-a) of
the Hindu Marriage Act, on the ground of cruelty.
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C.M.A.No.3709 of 2021
2. The gist of the allegations of cruelty made by the respondent/wife
before the Family Court is that the respondent/wife and the appellant/husband
got married on 02.03.2017 and even though they were living under the same
roof until September, 2018, the husband never shown any interest in
consumating the marriage. The respondent/wife took up the matter with the
appellant's uncle for advising him. Enraged by the same, on 17.09.2018, the
appellant/husband scolded her in filthy language and attempted to forcefully
sexually abuse her and therefore, from 18.09.2018 onwards, she was forced to
leave matrimonial home and therefore, she prays for dissolution of the marriage
stating that the behaviour of the appellant in not consumating the marriage
amounts to cruelty.
3. The appellant/husband filed a counter and resisted the said allegations.
He admits that the marriage was never consummated. According to the
appellant, it is the respondent/wife who all along postponed the consummation,
initially, by stating that she has to go abroad to London and even though they
started living in London, she avoided by saying that she did not want to get
pregnant. On 16.09.2018, infront of his relatives, the respondent/wife levelled
allegations that he was not behaving like a man and on 18.09.2018, the
respondent/wife was taken back by her parents, relatives and friends. Even
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C.M.A.No.3709 of 2021
now, the appellant/husband is ready and willing to live with the
respondent/wife.
4. Unable to resolve the matrimonial conflict between the parties through
the Counselling, the Family Court proceeded with the matter by way of trial and
the respondent/wife examined herself as P.W.1 and one Chengottian was
examined as P.W.2 and Exs.A1 to A4 were marked. On behalf of the appellant,
the appellant/husband examined himself as R.W.1 and one Sathyavani as
R.W.2 and no documents were marked on behalf of the appellant/husband.
5. Thereafter, upon consideration of the pleadings of the parties and the
evidence on record, the Trial Court found that it is the admitted case between
both the parties that even though they were living together for a long period of
one year and six months, no consumation of marriage took place. From the
very fact that it was only the respondent/wife who took up the issue with her
parents and then thereafter with the relatives of the appellant/husband, the Trial
Court came to the conclusion that non-consumation was on account of the fact
that the respondent/husband was not willing. Therefore, such unwillingness to
consumate the marriage at the very inception of the marriage amounts to cruelty
to the wife and therefore, decreed the petition for divorce as prayed for.
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C.M.A.No.3709 of 2021
Aggrieved by the same, the present appeal is filed before this Court.
6. Mr.K.A.Ravindran, the learned Counsel for the appellant would submit
that the respondent/wife did not plead or prove impotency of the
appellant/husbad. As a matter of fact, she did not also move the Court for
annulment of the marriage under Section 12 of the Hindu Marriage Act. On the
other hand, from the pleading in the petition itself it would be very clear that
when the appellant/husband was ready and wanted to consumate the marriage
on 17.09.2018, the same is taken exception by the respondent/wife and
therefore, since the consumation did not happen only on account of the attitude
of the respondent/wife, the appellant/husband cannot be found fault with. It is
his further submission that she wanted to go abroad and then, she did not want
to get pregnant, it is only the respondent/wife, who avoided consumation of
marriage. It is the further submission of the appellant/husband that he is ready
and willing to live together with the respondent/wife.
7. We have considered the submissions made on behalf of the appellant
and the findings and conclusions of the Trial Court. Given the nature of
allegations the appellant is making against the respondent/wife, the submission
of appellant that he is ready and willing to live with the respondent/wife is
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C.M.A.No.3709 of 2021
unbelievable, amusing and unapalatable. Therefore, we hold that the present
appeal itself is filed with an oblique motive of prolonging the agony of the
respondent/wife.
8. As rightly concluded by the Trial Court, it is the wife who has taken up
the issue with the relatives and that makes it abundantly clear that it is the
appellant/husband who was not interested in consumation of marriage. Further,
the case of the appellant/husband that the respondent/wife did not want to get
pregnant and therefore the appellant also avoided consumation is absolutely
unbelievable, given the knowledge and background of the parties and in the
present era of contraceptives. Therefore, it is clear that it was only the
appellant/husband who was not interested in consumation of the marriage.
9. The contention of the learned Counsel for the appellant/husband is that
the respondent/wife did not plead and prove the factum of impotency. We are
afraid that the same is in any manner relevant because if only the wife had filed
the petition for annulment of marriage as per Section 12 of Hindu Marriage Act,
it is necessary for her to prove the impotency and the consequence of non-
consummation on account of such impotency. But, here is a case, the wife has
approached the Court for decree of divorce under Section 13 (1) (i-a) of Hindu
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C.M.A.No.3709 of 2021
Marriage Act, on the ground of cruelty. Whether the appellant was potent or
not was never an issue. The only question before the Family Court was that he
was not willing to consummate the marriage, which amounts to cruelty to any
young spouse. Parties admitted that the marriage was not consummated even
though they lived together for one year six months. The Family Court on the
basis of the evidence on record and the material circumstances found that it was
only the husband, who was not interested in non-consummation of marriage
and therefore, the arguments of the learned Counsel for the appellant/husband
are without no merits and hence rejected.
10. The Civil Miscellaneous Appeal is therefore without any merits and is
dismissed.
(T.R.J.,) (D.B.C.J.,)
10.01.2022
Index : yes/no
Internet : yes/no
Speaking/Non-Speaking order
grs
To
The Family Court, Salem.
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C.M.A.No.3709 of 2021
T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
grs
C.M.A.No.3709 of 2021
10.01.2022
https://www.mhc.tn.gov.in/judis
