Madras High Court
Kalaiselvi vs Sivapriyan on 10 January, 2022
C.M.A.No.3660 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.3660 of 2021
Kalaiselvi ... Appellant
Versus
Sivapriyan ... Respondent
Prayer : Civil Miscellaneous Appeal has been filed under Section 19 of Famly
Court Act to set aside the order and decreetal order passed by the learned
Family Court Judge, Vellore in F.C.O.P. No:179/2018 dated 30.03.2021 and
pass orders.
For Appellant : Mr. M. Udayakumar
For Respondent : Mr. Arun Anbumani
JUDGMENT
(Judgment of this Court made by Mr.Justice D.Bharatha Chakaravarthy)
This Civil Miscellaneous Appeal in CMA.No.3660 of 2021 is filed by the
appellant/wife, namely Kalaiselvi aggrieved by the judgment and decree of the
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C.M.A.No.3660 of 2021
learned Family Court, Vellore in F.C.O.P.No. 179 of 2018 whereby the
application filed by the appellant wife for Restitution of Conjugal Rights under
Section 9 of the Hindu Marriage Act was dismissed.
2. The gist of allegations made in the petition for restitution of conjugal
rights is that the appellant wife got married to the respondent on 27.08.2012 at
Vellore as per Hindu rites and customs. Fifteen days after the marriage they
went to Jodhpur and started living there as the respondent was working there in
the Air Force station.
3. The respondent husband thereafter started harassing the appellant wife
by making false accusation that she is in relationship with someone else and the
family members of the respondent husband harassed her for bringing more
dowry. The petitioner had already lodged a complaint before the All Woman
Police Station, Vellore on 13.08.2013. The respondent husband also filed a
divorce petition in F.C.O.P.No. 348 of 2014 and the same is dismissed for
default.
4. Iterim maintenance was also ordered in the said divorce petition.
Thereafter, the appellant wife also filed a maintenance case in FCMC No. 158
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C.M.A.No.3660 of 2021
of 2014 in which Rs.6,000/- was ordered as monthly maintenance. Even though
the respondent husband filed a revision as against the said order, he is refusing
to join with the appellant wife and therefore the appellant wife has filed the
present petition for restitution of conjugal rights.
5. The respondent husband contested the matter by filing a counter
stating that when the appellant and the respondent were living in Rajasthan, the
respondent purchased a mobile phone with sim card No. 8752078074, for
convenience purposes, he has kept the call recording option on and therefore he
discovered that the appellant wife is having an illicit relationship with one
Vijayaraj working as Sub Inspector of Police in CISF at Arakonam and she had
continuously had conversation with the said person in his mobile No.
7708096544. The voice recordings available in the mobile phone would clearly
and categorically prove that they were having an illicit relationship and therefore
since the appellant wife is having an extra marital affair, the respondent is
justified in not living together and he has already filed a divorce petition.
6. Upon being unable to resolve the issue by way of counseling, the
Family Court had no other option than to proceed with the trial and the
appellant wife examined herself as P.W.1 and Exs.P-1 to P-8 were marked on
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C.M.A.No.3660 of 2021
her behalf. On behalf of the respondent, the respondent husband examined
himself as R.W.1 and one Kavitha as R.W.2 and one Mangayarkarasi, Inspector
of Police of All Women Police Station, Vellore as R.W.3. Exs. R-1 to R-5 were
marked on behalf of the respondent. The copy of the CSR No. 531 of 2013 was
also marked as Ex. X-1 as court document.
7. The learned Family Court, after considering the pleadings of the parties
and appraising the evidence on record, had listened to the recorded
conversations between the appellant wife and the said 3rd party, namely
Vijayaraj in Ex.R-5 cellphone and had concluded that the conversation between
the appellant wife and the other man clearly established that there was an affair
between the both of them for quite a long time before the marriage itself and
there was also physical contact between them and the family court further found
that the said person and the appellant wife still continued their contact even
after the marriage and therefore dismissed the petition. Aggrieved by the same,
the appeal is laid before this court.
8. Mr. N. Udayakumar, learned counsel appearing on behalf of the
appellant would submit that the Divorce Petition filed by the respondent
husband has been dismissed for default. As on date, the appellant is the lawful
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C.M.A.No.3660 of 2021
wife and therefore the respondent husband cannot refuse to live together and the
Family Court therefore ought to have allowed the petition for restitution of
conjugal rights. According to the learned counsel, the sole basis for the family
court to dismiss the petition for restitution of conjugal rights, is the recordings in
Ex.R-5 cell phone. He would submit that in this case, no certificate as required
under Section 65-B of the Indian Evidence Act was marked and therefore the
entire evidence on the basis of Ex.R-5 cell phone recordings cannot be taken on
record and therefore in the absence of any other clinching evidence, the
allegations of extra marital relationship did not stand proved. This apart, he
would submit that R.W.3, the Inspector of Police, took sides with the
respondent husband as he is employed in Navy and therefore her evidence
should not also be considered.
9. Per contra Mr. Arun Anbumani, learned counsel appearing for the
respondent husband taking notice pursuant to the caveat filed, would submit
that it is a clear and categoric case whether the appellant wife has an extra
marital affair and there is clinching evidence which is placed before the Family
Court and the Family Court has rightly come to the conclusion that the wife is
not entitled for the relief of restitution of conjugal rights. As far as the Divorce
Petition is concerned, already the appellant husband has filed a restoration
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C.M.A.No.3660 of 2021
petition which is pending consideration before the family court and therefore he
would pray that there is nothing for this court to interfere in this appeal.
10. We have give our consideration to the submissions made on both
sides and the pleadings of the parties and the evidence on record. We are
unable to agree that the learned counsel appearing for the appellant that there is
any error in the order of the Family Court. Even before this court, the contents
of the alleged conversations between the appellant wife and the third person is
not denied to be false. But on the other hand, only a technical objection stating
that the same has been wrongly marked without complying with the mandatory
requirements of a certificate under Section 65-B of the Indian Evidence Act is
raised. However, the said legal submission is without any merits because when
the alleged electronic equipment itself is actually produced before the Court and
the court heard the conversations from the very equipment in which it is
recorded, there is no requirement of any certificate as per Section 65-B and
therefore we reject the said technical contention on behalf of the appellant wife.
When the Family Court has adverted to and listened to the conversations and
has come to the conclusion without any hesitation that the conversations clearly
demonstrate an extra marital affair, it has rightly dismissed petition for
restitution of conjugal rights and therefore there is absolutely no merit
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C.M.A.No.3660 of 2021
whatsoever in this appeal. We also further see that R.W.3, the Inspector of
Police, who conducted an enquiry in the complaint given had also deposed
corroborating the recordings made in the mobile phone.
11. Under these circumstances, there is nothing to interfere with the order
of the Family Court and accordingly this Civil Miscellaneous Appeal stands
dismissed. However, there will be no order as to costs.
(T.R.J.,) (D.B.C.J.,)
10.01.2022
Index : yes/no
Internet : yes/no
Speaking/Non-Speaking order
mrn
To
The Family Court Judge, Vellore
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C.M.A.No.3660 of 2021
T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
mrn
C.M.A.No.3660 of 2021
10.01.2022
https://www.mhc.tn.gov.in/judis
