Madras High Court
P.Babu vs P.Saranya on 7 August, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.No.913 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.07.2024
PRONOUNCED ON : 07.08.2024
CORAM:
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
AND
THE HONOURABLE MR. JUSTICE P.DHANABAL
C.M.A.No.913 of 2022
P.Babu ... Appellant
Vs.
P.Saranya ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 19(1) of the
Family Court Act, 1994, against the fair and decreetal order dated 09.02.2022
passed in F.C.O.P.No.96 of 2020 (C.N.R.No.TNNM110000132020) on the
file of the Family Court (District Judge), Namakkal.
For Appellant : M/s.P.Mahalakshmi
For Respondent : Mr.N.K.Arulmuruganandam
******
JUDGMENT
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(Judgment of the Court was made by J. NISHA BANU, J.)
This Civil Miscellaneous Appeal has been preferred as against the
fair and decreetal order passed in F.C.O.P.No.96 of 2020 on the file of
Family Court, Namakkal dated 09.02.2022 by the appellant/petitioner, who
filed a petition before the Trial Court for granting divorce on the ground of
cruelty as well as desertion.
2. M/s.P.Mahalakshmi, learned counsel for the appellant/husband
made the following submissions:-
2.1. The marriage between the appellant and the respondent was
performed on 14.09.2016 at Vallipuram Easwaran temple, Namakkal as per
Hindu Rites and Customs. After marriage, both lived as husband and wife
only for a period of one month. There arose some wordy quarrel between
them due to misunderstanding. Thereafter, the respondent, without any valid
reason, left from the matrimonial home and continued to stay with her
parents.
2.2. Out of the wedlock, on 01.08.2017, a female child was born to
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them. Thereafter, the appellant called the respondent for re-union, but the
respondent refused to live with the appellant. The appellant, with the help of
his parents and relatives, tried to convince the respondent for three times by
conducting Panchayat but the respondent was very adamant and refused to
live with the appellant.
2.3. According to the learned counsel for the appellant, the
respondent for a period more than two years has been staying along with her
parents and refused to live with the appellant. Even the respondent/wife has
filed a petition in F.C.O.P.No.467 of 2018 seeking divorce, but the same was
withdrawn upon the advice given by her family members and elders. Upon
the advise given by them, the respondent went to the matrimonial home on
05.03.2019, but on the same day, she returned to her parents' home. On
15.09.2019, the appellant along with his family members again went to the
house of the respondent and took steps for re-union. But the respondent very
stubbornly took the decision to stay away from the appellant and she even
verbally abused and ill-treated the appellant and his family members and sent
them back.
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2.4. Since there is no scope for re-union, the appellant/husband
filed a petition seeking divorce as against his wife in F.C.O.P.No.96 of 2020
on the file of Family Court, Namakkal. The Trial Court vide order dated
09.02.2022, dismissed the petition by holding that the petition is not
maintainable and it lacks evidence to prove the stand of the appellant.
Aggrieved against such dismissal, the petitioner/husband has preferred the
present civil miscellaneous appeal.
3. Mr.N.K.Arulmuruganandam, learned counsel for the respondent
made the following submissions:
3.1. The petition which was filed by the appellant before the Court
below is not maintainable either in law or on facts and therefore, the same
came to be dismissed. According to the learned counsel, the marriage
between the parties and a female child born to them are admitted. In fact, the
appellant had only driven out the respondent and her child from the
matrimonial home and neglected them. Therefore, the respondent is residing
in her parents' house.
3.2. The learned counsel for the respondent denied the contentions
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made by the appellant as false. The learned counsel further contended that the
appellant married one Sangeetha at Pachaperumalpatti, Thuraiyur Taluk, who
is his relative and therefore, the respondent had given a complaint before All
Women Police Station, Namakkal on 04.05.2018 where she has expressed her
willingness to live with the appellant. In the police station, an Advocate
represented on behalf of the appellant and he assured that he will file a
petition for restitution of conjugal rights but the said Advocate had not filed a
petition for restitution of conjugal rights per contra, he filed a petition for
divorce without the knowledge of the respondent. Therefore, the respondent
did not press the application in F.C.O.P.No.467 of 2018.
3.3. According to the learned counsel for the respondent, the
respondent/wife is residing with her three years old daughter at her parents'
home and she is also struggling for her maintenance. The Court below has
passed a well-reasoned order and therefore, the same does not warrants the
interference of this Court and hence, the learned counsel prayed for
dismissing the appeal.
4. Heard the learned counsel for the appellant and the learned
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counsel for the respondent and perused the materials placed before this Court.
5. Before the Trial Court, on the side of the appellant, two
witnesses P.W.1 and P.W.2 were examined and 5 documents were marked as
Ex.P1 to Ex.P5. On the side of the respondent, R.W.1 was examined and
exhibits Ex.R1 to Ex.R5 were marked. The Trial Court, after analysing the
evidences adduced on both sides, dismissed the petition. Aggrieved by the
fair and decreetal order, the present Civil Miscellaneous Appeal has been
preferred on various ground by the appellant.
6. During the pendency of the appeal, both the parties entered into a
compromise and filed a Joint Compromise Memo stating that the appellant
paid a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) to the respondent
towards maintenance of her child and permanent alimony and the said
amount was received by the respondent through Demand Draft Bearing
No.049278 dated 22.05.2024 for a sum of Rs.5,00,000/- (Rupees Five Lakhs
Only) and Demand Draft Bearing No.049309 dated 11.06.2024 for a sum of
Rs.5,00,000/- (Rupees Five Lakhs Only). Thereafter, the respondent has
withdrawn the petitions filed by her in F.C.O.P.No.116 of 2022 and
maintenance case in M.C.No.26 of 2022 on the file of the Family Court,
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Namakkal on 23.05.2024 and she had also undertaken to withdraw the
DVC.No.3 of 2024 pending on the file of Additional Mahila Court,
Namakkal and the respondent had no objection to dissolve the marriage.
7. This Court carefully perused the entire joint compromise memo.
On perusal of the Joint Compromise Memo, it reveals that the parties have
settled the dispute out of Court and the respondent received a sum of
Rs.10,00,000/-( Rupees Ten Lakhs Only) from the appellant towards
maintenance of her child and permanent alimony and she has also withdrawn
the cases pending before the Family Court, Namakkal and Additional Mahila
Court, Namakkal. Though the parties have entered into compromise between
them, the divorce cannot be granted by the consent of the parties unless the
grounds raised by them are proved. At this juncture, it is relevant to refer the
judgment of the Hon'ble Supreme Court in the case of Sanjeeta Das Vs
Tapan Kumar Mohanty reported in (2010) 10 SCC 222 wherein the Hon'ble
Supreme Court has categorically held that no Court can assume jurisdiction
to dissolve a Hindu marriage simply on the basis of the consent of the parties
dehors the grounds enumerated under Section 13 of the Hindu Marriage Act,
1955 unless the consenting parties proceeded under Section 13(B) of the
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Hindu Marriage Act, 1955. Therefore, this Court, without accepting the
consent of the parties for granting divorce, heard the matter on merits. The
compromise in respect of the permanent alimony and the maintenance of her
child paid by the appellant for a sum of Rs.10,00,000/-(Rupees Ten Lakhs
Only) to the respondent and the withdrawal of cases filed by the respondent
are recorded.
8. The point for determination in this appeal is whether the
appellant proved the case for granting divorce on the grounds of cruelty as
well as desertion?
9. In this case, there is no dispute in respect of marriage between
the parties and a female child born to them, who is presently 7 years old and
she is under the custody of the respondent/mother. Before the Trial Court, the
appellant has filed a petition seeking for divorce on the grounds of cruelty as
well as desertion. In order to prove the same, P.W.1 and P.W.2 were
examined and documents were marked as Ex.P1 to Ex.P5. P.W.1 has
categorically deposed about the case and he mainly stated that without any
valid reasons, the respondent left from the matrimonial home along with the
child and she was residing in her parents' house for more than two years.
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10. When the appellant contacted the respondent through elders for
reunion, the respondent has abused the appellant and his family in obscene
words, thereby she failed to restitute the conjugal rights with the appellant.
The above said facts have been denied by the respondent and the respondent
admitted the separation for more than two years from the date of filing of this
application and also admitted that she had already filed a petition for divorce
and the same was withdrawn. Though the learned counsel for the respondent
has stated that the respondent has instructed her Advocate to file a petition for
restitution of conjugal rights, but he has filed a petition for divorce without
her consent, the above said version of the respondent is not acceptable and
there is no evidence to substantiate her contentions. Therefore, the appellant
made out his case for granting divorce on the grounds of cruelty as well as
desertion. The Trial Court failed to consider the evidences adduced by the
appellant and the documents marked by him and also failed to consider that
P.W.1 has categorically deposed about the case thereby, he established the
cruelty caused by the respondent and the desertion for more than two years.
Therefore, the fair and decreetal order passed by the Trial Court by
dismissing the petition filed by the appellant for granting divorce is
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unsustainable and is liable to be set aside by allowing this appeal. Thus, the
point is answered.
11. In the result, the fair and decreetal order passed by the Trial
Court in F.C.O.P.No.96 of 2020 on the file of the Family Court, Namakkal
dated 09.02.2022 is set aside and the Civil Miscellaneous Appeal is allowed.
The marriage between the appellant and the respondent dated 14.09.2016
solemnized at Vallipuram Easwaran temple, Namakkal District is dissolved
by granting divorce. No cost.
(J.N.B.J) (P.D.B.J)
07.08.2024
Internet : Yes/No
Index: Yes/No
Speaking Order: Yes/No
nr/sts
To:
The Family Court,
Namakkal.
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J.NISHA BANU.,J.
and
P.DHANABAL., J.
sts
Judgment made in
Dated:
07.08.2024
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