K.Vijay Kumar vs Smt. B.K. Malliga
2022 Latest Caselaw 9434 Mad

                                                                                   C.M.S.A.No.37 of 2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 06.06.2022

                                                         CORAM

                                    THE HONOURABLE MS. JUSTICE P.T.ASHA

                                                C.M.S.A. No.37 of 2022

                     K.Vijay Kumar
                                                          ... Appellant/ Appellant/Petitioner

                                                            Vs

                     Smt. B.K. Malliga
                                                        ... Respondent/Respondent/ Respondent

                     PRAYER: Petition filed under Section 100 of CPC read with Section 9 of

                     the Hindu Marriage Act, to against the Judgment and decree rendered in

                     CMA No.11 of 2017 dated 15.02.2022, on the file of the District Court, The

                     Nilgiri District, confirming the Judgment and decree of the Sub Court,

                     Udhagamandalam, the Nilgiri District, rendered in HMOP No.8 of 2016

                     dated 20.04.2017.



                                    For Appellant       : Mr.R.Saseetharan



                     1/8
https://www.mhc.tn.gov.in/judis
                                                                                    C.M.S.A.No.37 of 2022

                                                          JUDGEMENT

This Civil Miscellaneous Second Appeal is filed by the unsuccessful

petitioner/husband. The facts in brief necessary to dispose of the above

appeal are as follows:-

2. The appellant herein had filed an application for restitution of

conjugal rights under Section 9 of the Hindi Marriage Act on the file of the

Sub Judge Udhagamandalam against his wife, the respondent herein. It was

his case, in the petition filed in support of the restitution of conjugal rights,

that he had married the respondent on 30.11.1987 as per the Hindu rites and

Customs. Out of this wedlock a daughter named Archana was born on

20.12.1988. The petitioner at the time of his marriage was working as a

teacher in the Government Higher Secondary School at Anikorai Village,

Ooty Taluk. The appellant and the respondent live happily at his marital

home for about two and a half years. However, the respondent had refused

to join the appellant at Anikorai ( his place of work) as the same was a rural

village. In the month of June 1990 his father in law passed away and after

the funeral rites the respondent refused to rejoin him. The attempts to

mediate had also failed since the respondent insisted that the appellant

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

should permanently shift with her at Manjoor in her mother's house.

3. Thereafter, in August 1990, the appellant brought back his elder

daughter Archana from the custody of the respondent in the fond hope that

the respondent would rejoin him. Meanwhile, the 2nd daughter Asitha was

also born on 12.10.1990 and she remained with the respondent. It is the case

of the appellant that the respondent had lodged a police complaint against

the appellant stating that the appellant had forcefully taken away the

daughter Archana. However, before the police authority the child Archana

refused to join the mother. The respondent was advised to file necessary

petitions for custody which she did not do. The respondent thereafter,

refused access to the appellant to his 2nd daughter Asitha. The respondent

also took out a petition for maintenance. The appellant would submit that he

has been paying the maintenance as directed by the Court without a default.

4. The appellant would submit that he had brought up his daughter

Archana in a congenial atmosphere, educated her and married her into a

good family. On the other hand, his 2nd daughter Asitha who was in the

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

custody of the respondent however did not have these facilities and

ultimately she had eloped and married a man out of her community. The

respondent was only interested in getting enhanced maintenance and not at

all interested in discharging her conjugal duties and maternal obligation

towards the petitioner and his daughters. However, in order to ensure the

reputation of his daughters in their respective matrimonial homes, there was

a necessity for the respondent and the appellant to reunite. Therefore, the

appellant had come forward with the petition for restitution of conjugal

rights.

5. The respondent had filed a counter inter alia denying that the

allegation contained in the petitions filed under Section 9 of the Hindu

Marriage Act. It is the respondent’s case that the appellant had behaved in

an inhuman manner with her as he wanted more dowry both in the form of

articles as well as land. She would submit that after deserting the

respondent/wife herein after the birth of the 2nd daughter in the year 1990

the petition for restitution of conjugal rights has been filed only in the year

2016 which is nearly 26 years after the birth of the 2nd daughter. She would

submit that they have been living separately for over 30 years and the

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

present petition is highly belated and therefore, deserves to be dismissed.

6. The Sub Judge, Udhagamandalam before whom the above petition

in HMOP No. 8 of 2016 was filed, by order dated 20.04.2017 was pleased to

dismiss the same. The said order was taken up on appeal by the appellant

herein in CMA No.11 of 2017 before the District Court, Udhagamandalam.

The learned Judge also concurred with the view taken by the Sub Court-

Judge, Uthagamanalam. Both the Courts have held that just as much as the

wife has not shown proof for her continued absence from the matrimonial

home the appellant/ husband has also not been able to explain the enormous

delay in taking out a petition for restitution of conjugal rights. It is

challenging the concurrent Judgment and Decree that the appellant is before

this Court.

7. Heard Mr.Saseetharan, learned counsel for the appellant.

8. The learned counsel for the appellant would submit that the finding

of the Courts below that the respondent/wife has deserted the appellant/

husband would work adversely against the respondent after the appellant’s

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

demise as she would not be able to get the terminal benefits of the appellant.

This argument cannot be countenanced since by dismissing the appeal there

is no change of status as wife for the respondent. The present petition is

instituted for restitution of conjugal rights and not for a divorce. Both the

Courts below have rightly held that the petition for restitution of conjugal

rights has been filed nearly two decades and six years after the parties have

been living apart. The Courts below have not set at naught the matrimonial

bond between the appellant and the respondent and the respondent

continues to enjoy the status as wife of the appellant.

9. I do not see any substantial question arising in the above appeal

and consequently, the Civil Miscellaneous Second Appeal stands dismissed.

No costs.

06.06.2022

Index : Yes/No Internet: Yes/No Speaking / Non-Speaking shr

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

To

1. The District Court, Udhagamandalam.

Nilgiri District.

2. The Sub Court, Udhagamandalam.

https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2022

P.T. ASHA, J, shr

C.M.A. No.37 of 2022

06.06.2022

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