Madras High Court
E.Thilagavathy vs M.Punniyamoorthi on 22 December, 2023
C.M.A.(MD).No.1121 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 21.11.2023
Pronounced on : 22.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
CMA(MD) No.1121 of 2017
and CMP(MD) No.11414 of 2017
E.Thilagavathy ...appellant/
Respondent
Vs.
M.Punniyamoorthi ... Respondent/
Petitioner
PRAYER: Civil Miscellaneous Appeal is filed under Section 19 of the
Family Courts Act r/w Section 28(4) of the Hindu Marriage Act against
the fair and decreetal order dated 13.10.2017 in H.M.O.P.No.780 of 2014
on the file of the Family Court Judge, Tiruchirappalli.
For Appellant : Ms.T.Banumathy
For Respondents : Mr.N.Madhava Govindan
1/15
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C.M.A.(MD).No.1121 of 2017
JUDGMENT
RMT.TEEKAA RAMAN, J.
This Civil Miscellaneous Appeal is directed against the fair and
decreetal order dated 13.10.2017 made in H.M.O.P.No. 780 of 2014 by
the Family Court Judge, Tiruchirappalli.
2.The appellant is the wife and the respondent is the husband.
For the sake of convenience, the parties are referred to as 'husband' and
'wife'.
3.The husband filed HMOP No.780/2014 for dissolution of
marriage on the ground of cruelty and under Section 13(1)(ia) of the
Hindu Marriage Act. The wife filed counter statement stating that due to
civil dispute in respect of undivided share in the house at the instance of
the brother of the husband, the case has been filed and MC No.11 of 2015
and maintenance was awarded to her and two daughters, however, the
husband has not paid the same.
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4. Before the trial Court, the husband examined himself as
P.W.1 and marked Ex.P1 marriage invitation, Ex.P2 – legal notice and
Ex.P3-postal acknowledgment. The wife examined herself as R.W.1,
however, she has not marked any documents.
5. On considering both the oral and documentary evidence, the
family Court, Trichy has come to the conclusion that the parties are living
separately for more than 12 years and she has made false allegation that
the husband is having an illicit relationship with one of his co-employee
by name Chamundeeswari working in a particular department and also
uttered that he is also having another relationship with another lady by
name Senthilvadivu and hence, the family Court observed that levelling
allegation of illicit relationship against the husband or spouse, as the case
may be, amounts to mental cruelty and granted the relief on the ground of
irretrievable breakdown of the marriage.
6. The wife has preferred the appeal primarily on the ground
that irretrievable breakdown of marriage is not a ground stated under the
Hindu Marriage Act, instead, contended that the High Court in exercise
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of its power under Article 142 of the Constitution of India can do so.
Furthermore, the plea of desertion was not taken by the husband,
however, the family Court has chosen to discuss the same in detail and
further stated that the reason of levelling of allegation of illicit
relationship with two named persons in the railway department, where
the husband works is not the case of the petitioner, however, the same
was taken as a ground only by the judicial officer for granting the relief.
7. The learned counsel for the respondent/husband made
submissions in support of the order passed by the family Court dated
13.10.2017.
8. Heard the learned counsel for the appellant and the learned
counsel for the respondent and perused the materials available on record.
9. After hearing both sides, we find that the respondent/husband
filed HMOP No.780/2014 seeking dissolution of marriage, which was
solemnized between the parties on 13.09.2000. They begotten two
children in the year 2001 and 2004 respectively. As the elder daughter
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attained puberty, as per the family customs, they have arranged for a
function, in which, it is alleged that there was a quarrel ensued between
the parties, which was resulted in filing of the above petition on the
ground of cruelty. Certain averments were also made regarding desertion
and that they are living separately for about 12 years.
10. Wife filed counter stating that she is willing to join with the
husband and hence, sought for counter relief of restitution of conjugal
rights in the very same petition. We have perused Ex.P2 - legal notice.
The legal notice was issued on behalf of the husband on 12.06.2014. The
submissions made in Ex.R2 - notice is that the wife is living separately
for about 12 years in Boothalur village and she had converted her religion
to Protestant and also pressurizing to convert the family members of the
husband to Christianity and thereby they are subjected to cruelty.
11. The husband as P.W.1 in the cross-examination had admitted
as follows:
“vdJ kidtp ,uz;lhtJ Foe;ij
fUTw;wNghJ vjph;kDjhuiu Jd;GWj;jpajhf
midj;J kfsph; fh.ep. jpUtuk;G+hpy; Gfhh; nfhLj;J
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tprhuiz ele;jjh vd;why; tprhuiz ele;jJ.
me;j Gfhh; kPz;Lk; fz;Nlhd;nkd;l; midj;J
kfsph; fh.ep. te;J tprhuiz ele;jJ vd;why; mJ
rhpjhd;. fhty;epiyaj;jpy; ele;j tprhuizf;F
vq;fs; ,UtiuAk; jdpFbj;jdk; elj;j
mwpTWj;jpdhh;fs;. mjd; mbg;gilapy; jpUtuk;
G+hpy; jdpahf tPL vLj;J FLk;gk; elj;jpte;Njhk;.
...
vd; Kjy; kfs; G+g;nga;j rkak; me;j
tpohit vdJ tPl;by; fy;fz;lhh;Nfhl;ilapy;
itj;Jf;nfhs;syhk; vd;W kidtp Foe;ijfis
mioj;J te;Njd; vd;W nrhd;dhy; mJ rhpay;y.
2.5.14y; vdJ kfs; G+g;nga;jJ cz;ik. mJ
njhlh;ghf epfo;r;rpfs; vy;yhk; vdJ rNfhjuh;
tPl;by; ele;jJ.
...
me;j epfo;r;rpapy; ehd; fye;J nfhz;Nld;.
vd; kidtp Foe;ijfs; ,UtUk; ehd; trpf;Fk; vd;
jk;gp tPl;by; ,Ue;jhh;fs; vd;why; mJ rhpjhd;.
...
vdJ kidtpAk; gps;isfSk; vq;fs;
Flk;g tPl;by; chpikNfhuf;$lhJ vd;gjw;fhf me;j
tPl;il vdJ jk;gp ngahpy; khw;wptpl;L ngha;ahf
ehd; thliff;F FbapUf;fpNwd; vd;W nrhd;dhy;
mJ rhpay;y.
...
vdJ kidtpAk; kfs;fSk; vdJ jk;gp
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tPl;by; FbapUe;jNghJ mth;fs; tPl;iltpl;L
ntspNa khl;lhh;fs; vd;W vdJ jk;gp jpUtuk;G+h;
midj;Jkfspy; fh.ep. Gfhh; nfhLj;J tprhuiz
elj;jg;gl;lJ vd;why; mJ rhpjhd;. me;j
tprhuizapy; ehd; M[uhfp vdJ kidtpAk;
Foe;ijfisAk; mioj;Jf;nfhz;L jdpahf
FLk;gk; elj;JfpNwd; vd;W cj;juthjk; nfhLj;J
vOjpnfhLj;Njd; vd;why; mJ rhpjhd;. mjw;F
gpwJ ehd; vdJ kfs;fisAk; kidtpAk;
mioj;Jnfhz;Lte;J FLk;gk; elj;jtpy;iy. Vd;
vd;why; mjw;F Kd;ghf ehd; tpthfuj;J kDit
jhf;fy; nra;Js;sjhy; ehd; mt;thW FLk;gk;
elj;jtpy;iy. fhty; mjpfhhpahy;
neUf;fbahy;jhd; ehd; mth;fis mioj;Jnrd;W
FLk;gk; elj;JfpNwd; vd;W ehd; vOjpnfhLj;Njd;.”
12. We find from the admission made by the husband that the
case of the wife in the cross-examination assumes significance. As stated
supra, it is the specific case of the wife that few weeks before the filing of
the divorce petition, the first daughter's puberty function was conducted
in the house and that at that time, after the function, his wife along with
his two children continued to live in the house, however, her husband has
not returned home. While so, his brother filed a police complaint against
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his wife to send her out of the matrimonial home and during enquiry in
the police station, the husband came and compromise the situation to set
up a separate house and thus, from the admission of P.W.1, in the cross-
examination, we find that the wife and her two daughters were sent out of
the matrimonial home forcibly. Therefore, we find that the husband, who
had caused cruelty on the wife. Furthermore, it is her specific evidence
that in the said house, her husband is having one undivided share and
loan was taken by both parties and only with a view to not to give any
share in the newly constructed house, the husband is siding with his
brother and instigated to give a case.
13. It remains to be stated that the wife has taken a specific
stand both in her pleadings as well as in her evidence as R.W.1 that she
has admitted her children at Thiruverumbur School by transferring them
from Boothalur and resided in the new house built by her husband, who
is paying the loan. This fact was not denied by the husband assumes
significance. It is her specific evidence that her husband is not coming
home to live with them and he never helped her and even the children for
their education resulted in filing of the maintenance case No.85/2015.
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The maintenance was awarded, which was not paid by the husband.
14(a). It is also to be noted that the wife is working as a
Teacher. The husband is working as a Kalaasi in the Railways. Even at
the time of marriage, the salary difference between them is high and the
husband has entertained an inferiority complex and such averment in the
affidavit as well as the pleadings was not denied/disputed nor explained
by the husband/P.W.1 also gains importance.
(b) By way of defence, as to the attitude of the husband in not
coming to the matrimonial home, she has named two persons in her
evidence and the same was not proved in the manner known to law. The
allegation of adultery and proving of adulterous life of the husband is
very difficult to prove in the judicial proceedings. It is also to be stated
that the trial court has proceeded to pick up a hole in the case of the wife
and granted a decree.
(c) We are not in a position to appreciate the approach adopted
by the family Judge. The husband, having come to the Court seeking the
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relief of dissolution of marriage on the ground of cruelty, has to plead the
alleged act of cruelty of the wife committed upon him and thereafter
prove the same in the manner as established by law.
15. In the instant case, the family Court Judge appears to have
considered the case of the husband, however taken a loophole in the
written statement of the wife and held that she has not proved her
pleadings. This approach is erroneous and liable to be set aside.
Accordingly, the finding of the trial Court that the wife has not proved
the illicit relationship, on the facts and circumstances of the case, stands
hereby set aside.
16. The case was instituted by the husband on the ground that
the wife is living separately for about 12 years. Thus, no relief was
sought on the ground of desertion. The family Court has taken pains to
discuss at length about the alleged desertion forgetting the fact that after
every panchayat, it is the wife and children, who have joined him and it is
the husband, who left the matrimonial home leaving the wife and children
at Boothalur next at Thiruverumbur and finally at the newly constructed
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house on the joint family property of the husband and giving complaint
by his brother assumes significance and hence, we find that the desertion
of the wife is proved. The continuous desertion over a period of 12 years
under Section 13(1)(b) of the Hindu Marriage Act for the reasons cited,
the family Court has gone to an extent of discussing the fact, which was
not even pleaded in the petition.
17(a). Whether the wife has committed cruelty by levelling such
allegation is the point for consideration. The wife is always ready and
willing to live with the husband along with two children. It is the
husband, who is running away from the matrimonial home without
discharging his duty and responsibility as a husband. It is the specific
plea of the wife as well as in her evidence that they have not even availed
the facilities offered by the Southern Railway for the last 15 years.
(b) The husband has not even included the name of the wife and
children in the Service Register so as to enjoy certain facilities offered by
the railways to the staff of the family. This attitude of the husband
assumes significance inasmuch as he never intended to lead a
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peaceful/joint life with the wife and children by taking care of them as a
dutyful husband. In the absence of any specific plea regarding alleged
desertion and in the absence of the proof with regard to desertion for
continuous period of two years by the wife, without reasonable cause, the
trial Court has gone and discussed in detail and treated the same as
cruelty. None of the allegation that was averred by the husband as cruelty
and nor proved in the manner known to law.
(c) On the contrary, the wife has clearly demonstrated before
this Court through her pleadings and her evidence and by way of
suggestion during the cross-examination of P.W.1-husband that the
husband has not discharged his duties and he is the one, who has not
come to the matrimonial home, even when the wife is willing to lead a
peaceful life and therefore, we find that she has demonstrated the cruelty
at the hands of the husband to the effect that he is not interested to live
with the wife and children by not giving any financial assistance and has
not included the wife and children in the service register in the railways
so as to enjoy the facilities as a family member. These admitted facts
would go to show that it is the husband, who has committed cruelty and
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therefore, the wife was forced to live in the house of her father. The
reason assigned by the wife is found to be reasonable and acceptable.
18. After perusing the evidence of P.W.1 and R.W.1 we find that
the non resumption of the parties is true due to the act committed by the
husband and not by the wife and hence, he cannot be allowed to take
advantage of his own wrong, which is prohibited under Section 23(1)(a)
of the Hindu Marriage Act and therefore, the irretrievable breakdown of
marriage and alleged cruelty leading to the irretrievable breakdown of
marriage is not made out in this case and accordingly, the contention of
the husband stands negatived.
19. As we find that the cruelty stated by the husband is not
proved in the manner known to law and none of the allegations levelled
in the pleadings or in the affidavit are proved in the manner known to
law, we find that the order of dissolution of marriage passed by the family
Court is legally unsustainable.
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20. The trial Court as observed earlier has tried to take the
weakness of the wife in granting decree in favour of the husband and
hence, the decree of dissolution of marriage warrants interference.
21. For the foregoing reasons, the civil miscellaneous appeal is
allowed and the fair and decreetal order made in H.M.O.P.No.780 of
2014 by the Family Court Judge, Tiruchirappalli, stands set aside.
However, there shall be no order as to costs. Consequently connected
Miscellaneous Petition is closed.
(T.K.R.,J.) (P.B.B.,J.)
22.12.2023
NCC : Yes/No
Index : Yes/No
RR
To
1.The Family Court, Tiruchirappalli.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN,J.
AND
P.B.BALAJI, J.
RR
Pre Delivery judgment made in
22.12.2023
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