Madras High Court
Mr.Nachimuthu vs Mrs.Bhooma on 28 June, 2022
C.M.S.A.Nos.14 & 15of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.S.A. Nos.14 & 15 of 2019
[CMSA.No.14 of 2019]
Mr.Nachimuthu
...Appellant/ Appellant /Respondent
Vs
Mrs.Bhooma
... Respondent/ Respondent/Petitioner
[CMSA No.15 of 2019]
Mr.Nachimuthu
... Appellant/ Appellant /Petitioner
Vs
Mrs.Bhooma
... Respondent/ Respondent/ Respondent
PRAYER in CMSA No.14 of 2019: Appeal filed under Order 41 Rule 1
and Section 96 of CPC, against the judgement and decree dated 21-12-2018
passed in CMA.2/2018 on the file of the Addl. Dist. Judge FTC Mettur in
confirming the judgement and decree dated 01-08-2017 passed in
HMOP.124/2011 on the file of the Trail Court Sub Judge Mettur Salem
District.
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
For Petitioners : M/s. C.P.R. Kamaraj
For Respondent : Mr.A.Sundara Vardharan
PRAYER in CMSA No.15 of 2019: Appeal filed under Order 41 Rule 1
and Section 96 of CPC, Against the judgement and decree dated 21-12-2018
passed in CMA.3/2018 on the file of the Addl. Dist. Judge FTC Mettur in
confirming the judgement and decree dated 01-08-2017 passed in
HMOP.116/2011 on the file of the Trail Court Sub Judge Mettur Salem
District.
For Petitioners : M/s. C.P.R. Kamaraj
For Respondent : Mr.A.Sundara Vardharan
COMMON JUDGEMENT
These two Civil Miscellaneous Second Appeals have been filed by the
appellant/ husband. Since the facts in both the appeals are common, I am
proceeding to pronounce a common judgment.
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
2. Civil Miscellaneous Second Appeal No.14 of 2019 has been filed
against the Judgement and Decree dated 01/08/2017 in C.M.A. No.2 of
2018 on the file of the Additional District Court FTC, Mettur, confirming the
Judgement and Decree in HMOP No.124 of 2011 on the file of the Sub
Judge Mettur. H.M.O.P.NO.124 of 2011 is the petition for restitution of
conjugal rights filed by the respondent/wife.
3. Civil Miscellaneous Second Appeal No.15 of 2019 has filed
challenging the Judgement and Decree dated 01/08/2017 in C.M.A. No.3 of
2018 on the file of the Additional District Court FTC, Mettur, confirming the
Judgement and Decree in HMOP No.116 of 2021. HMOP No.116 of 2021
has been filed by the appellant/ husband seeking divorce.
4. The appellant/husband had filed the petition for divorce on the
ground of cruelty and desertion. The grounds of cruelty set out in the
petition are as follows:-
A) That the respondent/wife had accused the appellant's mother of
having poisoned their daughter.
B) That the respondent/wife has left her matrimonial home without
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
sufficient cause.
5. The respondent/wife on the other hand had filed HMOP No.124 of
2011 seeking restitution of conjugal rights. The respondent/wife in her
petition would submit that she had been subjected to a lot of ridicule as she
had given birth to two girls. The second daughter had died of snake bite
when she was at her paternal grandfather’s house and the respondent had
come to learn that the appellant's mother and sister had informed the
relatives that they have killed the child as the respondent herein had not
given birth to a son.
6. The respondent/wife further submitted that after the intervention of
Panchayatar the appellant herein had agreed to set up a separate family at
Anthiyur where the respondent, her elder daughter and the appellant had
lived together till the month of May 2009. Thereafter, without any prior
intimation the appellant had simply left the respondent/wife and her child
and went away and had never returned. The respondent's parents had
approached the appellant and requested him to return home but he refused
the same. However, the appellant came over with his relatives informing the
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
respondent and her parents that he would return to the matrimonial home if
the respondent herein gave an assurance that she would not continue to
work and would come and join the appellant at his parent's house and they
continue to live as a joint family. The respondent who had already
undergone a hardship at the hand of her in-laws was reluctant to do so.
Therefore, the appellant had deserted her without any reasonable cause.
Since the petitioner wanted to resume her matrimonial life with the
appellant, she had filed a petition for restitution of conjugal rights.
7. After contest HMOP No.116 of 2011 filed by the husband for
divorce was dismissed on the ground that no grounds had been made out for
granting the decree for divorce, HMOP No.124 of 2011 filed by the wife was
however, allowed. Challenging the said judgment and decree the appellant
had filed the C.M.A No.3 of 2018 and CMA.No.2 of 2018 respectively. The
appeals were also dismissed and the appellant has come forward with the
present appeals.
8. Heard both the learned counsels.
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
9. The appellant/husband has filed a petition for divorce on the
ground of cruelty and desertion. The only ground of cruelty which has been
alleged by the appellant is that the respondent had falsely accused his
mother of having poisoned to death his second daughter and the second
ground was that the respondent has been without any reasonable cause
living away from her matrimonial home. On the contrary, the wife has come
forward to file an application for restitution of conjugal rights which clearly
shows her intent to re-join her matrimonial home. In fact it is the
respondent's case that he had set up a separate residence at the behest
intervention of Panchayatar and after living with the respondent and her
child for some time the appellant had all of a sudden left the matrimonial
house and therefore, desertion is only on the side of the appellant and not on
the side of the respondent.
10. The Courts below have rightly perused the evidence both oral and
documentary and dismissed the petition filed by the appellant/husband for
divorce and allowed the petition for restitution of conjugal rights filed by the
respondent/ wife.
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
11. In the light of the above, these Civil Miscellaneous Second
Appeals are dismissed. No costs.
28.06.2022
Index : Yes/No
Internet: Yes/No
Speaking / Non-Speaking
shr
To
1. The Addl.Dist.Judge FTC Mettur.
2. The Trail Court Sub Judge Mettur Salem Dist.
3.The Section Office,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.S.A.Nos.14 & 15of 2019
P.T. ASHA, J,
shr
C.M.S.A. Nos.14 & 15 of 2019
28.06.2022
https://www.mhc.tn.gov.in/judis
