Madras High Court
Radhakrishnan vs Rajarajeswari on 1 March, 2024
C.M.S.A(MD)Nos.27 & 28 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01.03.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
C.M.S.A(MD)Nos.27 & 28 of 2016
and
C.M.P(MD)No.8381 of 2016
Radhakrishnan ... Appellant/Appellant/
Petitioner
(In Both the Cases)
Vs.
Rajarajeswari ... Respondent/Respondent/
Respondent
(In Both the Cases)
Prayer in C.M.S.A(MD)No.27 of 2016 : This Civil Miscellaneous
Second Appeal filed under Section 28 of the Hindu Marriage Act, 1925
r/w Section 100 of CPC, to call for the records relating to the judgment
and decreetal order, dated 10.04.2015 made in C.M.A.No.10 of 2013 on
the file of the II Additional District and Sessions Judge, Thanjavur against
H.M.O.P.No.57 of 2007 on the file of the Sub Court, Kumbakonam, dated
08.04.2013.
Prayer in C.M.S.A(MD)No.28 of 2016 : This Civil Miscellaneous
Second Appeal filed under Section 28 of the Hindu Marriage Act, 1925
r/w Section 100 of CPC, to call for the records relating to the judgment
1/11
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C.M.S.A(MD)Nos.27 & 28 of 2016
and decreetal order, dated 10.04.2015 made in C.M.A.No.11 of 2013 on
the file of the II Additional District and Sessions Judge, Thanjavur
confirming the counter claim made in H.M.O.P.No.57 of 2007 on the file
of the Sub Court, Kumbakonam, dated 08.04.2013.
(In Both Cases):
For Appellant : Mr.T.Antony Arul Raj
For Respondent : M/s.Hema Sampath
Senior Counsel
for Mr.R.Subramanian
COMMON JUDGMENT
These Civil Miscellaneous Second Appeals have been preferred as
against the order passed in C.M.A.Nos.10 and 11 of 2013 respectively. In
both the Civil Miscellaneous Appeals, the appellant and the respondent are
one and the same. In fact, the appellant herein has filed a petition before
the Trial Court under Section 9 of the Hindu Marriage Act in H.M.O.P.No.
57 of 2007 as against the wife and in that petition, the wife has filed
counter claim seeking divorce from the appellant. The Trial Court has
dismissed the petition filed by the husband (i.e.,) appellant and granted
divorce by allowing the counter claim. As against both the orders, the
present appellant has filed appeals in C.M.A.Nos.10 and 11 of 2013
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C.M.S.A(MD)Nos.27 & 28 of 2016
respectively. The First Appellate Court also confirmed the orders passed
by the Trial Court by dismissing the appeals. Now the appellant has
preferred these Civil Miscellaneous Second Appeals.
2. For the sake of convenience and brevity, the parties herein after
will be referred to as per their status / ranking in the Tribunal.
3. The case of the appellant before the Trial Court is that the
marriage between the petitioner and the respondent was solemnized on
24.05.2002 at Chennai. Thereafter, a male child was born on 23.08.2003.
In the month of June 2004, the respondent wanted to go to her parent
house along with child. Thereafter when the petitioner asked to come with
him, she refused for the same. Without any valid reasons, the respondent
has been neglecting the petitioner and refused to live with him. Hence, he
filed the petition for restitution of conjugal rights.
4. The respondent has filed counter stating that the petition is not
maintainable. After the marriage, by suspecting the character of the
respondent, the petitioner frequently made quarrel with her and demanded
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C.M.S.A(MD)Nos.27 & 28 of 2016
dowry from her parents. Due to the harassment made by the petitioner, the
respondent left from the matrimonial home. At the time of marriage, the
family of the petitioner represented that he is expecting vedic. But he did
not know the basic in the vedic. Further, the petitioner insulted the
respondent in the presence of her parents and he never taken care of the
minor child and the respondent. However, the petitioner had affairs with
one Gayathri even prior to the marriage and he was also affected by mental
health. Therefore, the petitioner is residing separately for the above said
reasons. Further, she filed a counter claim to grant divorce.
5. Before the Trial Court, on the side of the petitioner, P.W.1 and
P.W.2 were examined and marked Exhibits P.1 to P.4. On the side of the
respondent, D.W.1 and D.W.2 were examined and no documents were
marked.
6. After hearing both the sides and perusing the records, the Trial
Court has dismissed the petition filed by the petitioner under Section 9 of
the Hindu Marriage Act and the counter claim was allowed and the
marriage between the petitioner and the respondent was dissolved. As
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C.M.S.A(MD)Nos.27 & 28 of 2016
against the orders passed by the Trial Court, the petitioner has preferred
appeals in C.M.A.Nos.10 and 11 of 2013 respectively. The First Appellate
Court after analyzing the evidences adduced on both the sides and hearing
both the sides, confirmed the order passed by the Trial Court and
dismissed both the appeals. As against the same, the present Civil
Miscellaneous Second appeals have been preferred.
7. The learned Counsel appearing for the appellant would contend
that the appellant is ready to live with the respondent and without any
valid reasons, she left from the matrimonial home and neglected the
appellant. There is no grounds to grant divorce and based on the vague
allegations, the Trial Court has granted divorce and the notice alone was
taken into consideration by the Trial Court and the allegations in respect of
harassment demanding of dowry and affairs with another girl have not
been proved by the respondent. Despite that, the Trial Court has granted
divorce and dismissed the petition filed by the appellant. The First
Appellate Court also without considering the above said aspects,
erroneously dismissed the appeals filed by the petitioner. Therefore, the
order passed by the Trial Court as well as the First Appellate Court are
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C.M.S.A(MD)Nos.27 & 28 of 2016
liable to be set aside by allowing these appeals.
8. The learned Counsel appearing for the respondent would contend
that before the marriage, the appellant suppressed many facts and this
appellant is suspecting the character of the respondent and after the
marriage, a male child was born to them and the child is still under the
custody of the respondent and the appellant being the dutiful father has not
taken any steps to maintain the child and not even paid any single pie for
maintenance so far. In order to prove the case of the respondent, D.W.1
and D.W.2 were examined and no documents were marked. The Trial
Court after considering the evidences adduced on both the sides fairly
came to a conclusion and passed a reasoned order. Therefore, the order
passed by the Trial Court by granting divorce and by dismissing the
petition filed by the appellant is in order and the present appeals are liable
to be dismissed.
9. This Court had heard both sides and perused the materials
available on record and upon hearing both sides and perusing the
documents, the point for determination in these appeals are:
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C.M.S.A(MD)Nos.27 & 28 of 2016
i) Whether any substantial question of law is involved in appeal
Nos.10 and 11 of 2013?
10. In this case, there is no dispute in respect of the relationship of
the parties and the marriage between the parties and the male child born to
them are admitted facts and the separation of parties is also admitted fact.
The wife admitted that she is living with her parents. According to the
appellant, the respondent living with her parents without any valid reasons
and she neglected the appellant and thereby, he filed the petition for
restitution of conjugal rights. According to the respondent, the appellant
harassed the respondent and demanded dowry of Rs.10,00,000/- and also
insulted her in the presence of her parents and he was affair with another
lady even prior to the marriage. Thereby, she left from the matrimonial
home and was living separately. In this context, before the Trial Court, on
the side of the petitioner, they examined P.W.1 and P.W.2 and marked
Exhibits P.1 to P.4. On the side of the respondent, D.W.1 and D.W.2 were
examined and no documents were marked. The Trial Court after
considering the evidences adduced on both sides, dismissed the petition
filed by the appellant for restitution of conjugal rights and granted divorce
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C.M.S.A(MD)Nos.27 & 28 of 2016
on the ground that the appellant caused harassment to the petitioner and
also there is a chance for demanding dowry of Rs.10,00,000/- and also in
the Exhibit P.4, there is a recital that he ready to give the articles to
respondent and thereby, he was not willing to live with the petitioner and
if restitution of conjugal rights is ordered, it will indulge to the life of the
respondent and thereby, granted divorce.
11. The First Appellate Court also in the order elaborately discussed
the judgments reported in 2014 (1) L.W 487 [R.Vasanthi Vs.
M.Harikrishnan], 2013 (2) MWN (Civil) 386 [Shantakumari @ Santhi
Vs. R.Venkatasubramani], 2011 (3) MWN (Civil) 723 [Rajesh Surana
Vs. Rekha] and 2011 (1) MWN (Civil) 225 [Gurbux Singh Vs.
Harminder Kaur]. After referring the above said judgments, dismissed the
appeal by holding that the cruelty pleaded by the respondent's wife though
counter claim has been proved. In the present appeals, the appellant has
raised so many grounds and all the grounds are factual aspects and no any
substantial question of law involved in these appeals either in other appeal
No.27 of 2016 or in appeal No.28 of 2016.
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C.M.S.A(MD)Nos.27 & 28 of 2016
12. These are second appeals filed by the appellant under Section
100 of CPC and thereby, they have to establish the substantial question of
law involved in these cases. On careful perusal of the records and
evidences adduced on both the sides on the grounds of appeals, there is no
substantial question of law involved in these appeals and thereby, these
Civil Miscellaneous Second Appeals have no merits and deserves to be
dismissed.
13. In the result, the Civil Miscellaneous Second Appeals in
C.M.S.A(MD)No.27 of 2016 and C.M.S.A(MD)No.28 of 2016 stand
dismissed by confirming the orders passed by the Courts below.
Considering the relationship of the parties, there shall be no order as to
costs. Consequently, connected Miscellaneous Petition stands closed.
01.03.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
https://www.mhc.tn.gov.in/judis
C.M.S.A(MD)Nos.27 & 28 of 2016
To
1.The II Additional District and Sessions Judge,
Thanjavur.
2.The Sub Court,
Kumbakonam.
3.The Section Officer,
Vernacular Record Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.S.A(MD)Nos.27 & 28 of 2016
P. DHANABAL, J.
BTR
C.M.S.A(MD)Nos.27 & 28 of 2016
01.03.2024
https://www.mhc.tn.gov.in/judis
