Madras High Court
Muthulakshmi @ Meenakshi vs Ramanathan on 3 October, 2024
C.M.S.A.(MD) Nos.23 & 24 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 25.09.2024
Pronounced on 03.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.S.A.(MD) Nos.23 & 24 of 2015
and
M.P.(MD) No.1 of 2015
Muthulakshmi @ Meenakshi
W/o.Ramanathan ... Appellant in
both C.M.S.As.
Vs.
Ramanathan
S/o.Udaiyappan ... Respondent in
both C.M.S.As.
Common Prayer:- Civil Miscellaneous Second Appeals filed under
Section 28 of the Hindu Marriage Act, 1955 read with Section 100 of
Code of Civil Procedure, 1908 to set aside the Judgments and Decrees
dated 25.03.2015 in H.M.C.M.A.Nos.4 & 5 of 2010 on the file of the
District Court, Sivagangai reversing the Judgments and Decrees dated
30.03.2010 in H.M.O.P.Nos.26 of 2009 & 36 of 2007 on the file of the
Subordinate Court, Devakottai.
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C.M.S.A.(MD) Nos.23 & 24 of 2015
For Appellant
in both C.M.S.As. : Mr.VR.Shanmuganathan
For Respondent
in both C.M.S.As. : Mr.J.Yogeswaran
COMMON JUDGMENT
The instant appeals have been filed challenging the decree of
divorce on the petition filed by the respondent and the dismissal of the
petition filed by the appellant for restitution of conjugal rights,
respectively.
2. The facts leading to the filing of these appeals are as follows:
(a) The appellant and the respondent were married on
21.11.2001.
(b) Difference of opinion arose between the parties, and
admittedly, they have been living separately since 2002.
(c) The respondent filed H.M.O.P.No.36 of 2007 under Section
13(1)(b) of the Hindu Marriage Act, 1955, alleging
desertion by the appellant.
(d) The appellant filed H.M.O.P.No.26 of 2009 under Section 9
of the Hindu Marriage Act, 1955, for restitution of conjugal
rights.
(e) Before the trial court in H.M.O.P.No.36 of 2007 filed by the
respondent for divorce, the respondent examined four
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C.M.S.A.(MD) Nos.23 & 24 of 2015
witnesses as P.W.1 to P.W.4 and marked four documents as
Exs.P1 to P4. The appellant examined three witnesses as
R.W.1 to R.W.3 and marked Ex.R1. The trial court held that
the respondent had not established the grounds for divorce
and dismissed H.M.O.P.No.36 of 2007.
(f) In H.M.O.P.No.26 of 2009, the appellant examined herself
as P.W.1 and marked Exs.P1 and P2. The respondent
examined himself as R.W.1 and marked Ex.R1. The trial
court found that the appellant had made out a case for
restitution of conjugal rights and allowed H.M.O.P.No.26 of
2009.
(g) The respondent, aggrieved by the dismissal of the petition
filed for divorce and the order in the petition filed for
restitution of conjugal rights, preferred H.M.C.M.A.Nos.4
& 5 of 2010 before the District Court, Sivagangai. The
lower appellate court allowed both appeals by granting a
decree of divorce to the respondent and dismissing the
appellant's prayer for restitution of conjugal rights.
(h) The instant appeals have been filed by the appellant
aggrieved by the findings of the lower appellate court.
3. The learned counsel for the appellant submitted that the cross-
examination of P.W.1 and P.W.2, and the evidence of R.W.1 and R.W.3
examined in H.M.O.P.No.36 of 2007, would clearly establish that the
respondent had not taken any steps for re-union, and on the other hand,
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C.M.S.A.(MD) Nos.23 & 24 of 2015
the appellant had taken steps to convene the Panchayat thrice; that it was
the respondent who refused to live with the appellant; and that the trial
court was, therefore, right in dismissing the petition for divorce and
allowing the petition for restitution of conjugal rights, but the lower court
erroneously set aside the well-reasoned judgments of the trial court.
4. The learned counsel for the respondent, per contra, submitted that
admittedly, the appellant and the respondent have been living separately
for more than 21 years; that they hardly lived together for a few months;
that the marriage has been irretrievably broken down; that the evidence
adduced on the side of the respondent, coupled with the conduct of the
appellant, would show that the respondent has established the facts
justifying divorce on the ground of desertion; and that the judgments
rendered by the lower appellate court are in accordance with law and
therefore need not to be interfered with.
5. This Court has carefully considered the rival submissions made
by the learned counsel on either side and has perused the evidence on
record and the judgments of the courts below.
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C.M.S.A.(MD) Nos.23 & 24 of 2015
6. The respondent had filed the petition for divorce mainly on the
ground that within few months after the marriage, differences of opinion
arose between the appellant and the respondent; that the appellant
demanded the salary of the respondent and also insisted on a partition of
the respondent's property, which was held jointly by the respondent and
his family members; that the appellant disrespected the respondent and
never cooked or served food to the respondent; that the appellant also
took away a sum of Rs.20,000/- from the respondent and left the
matrimonial home along with the belongings while she was pregnant; that
on 07.11.2002, a male child was born; that neither the appellant nor her
parents informed the respondent about the same; that on 05.03.2003,
although the appellant and her parents, along with the child, came to the
house of the respondent, they quarelled with him and attempted to assault
him; that thereafter, several mediation talks were conducted in the Village
Panchayat, but the appellant refused to join the respondent; that the
appellant has also given a police complaint against the respondent and his
parents; and that since the appellant had deserted the respondent from
05.03.2003, he is entitled to a decree of divorce.
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C.M.S.A.(MD) Nos.23 & 24 of 2015
7. The appellant filed a counter denying all the averments and
stating that the respondent demanded dowry and spent the money lavishly;
that even though the appellant became pregnant, the respondent did not
bother to take care of her medical needs, and therefore she was forced to
leave the matrimonial house; that thereafter, the respondent refused to
take care of the appellant and their child and demanded a sum of Rs.
1,00,000/- as dowry as a condition for taking them back to the
respondent's house; and that the appellant was always ready and willing to
live with the respondent.
8. The trial court found that the respondent had not established that
the appellant had left the matrimonial home without sufficient cause,
disbelieved the respondent's version, and therefore dismissed the petition
for divorce and allowed the petition for restitution of conjugal rights.
9. Though the appellant claimed that she was always ready and
willing to live with the respondent, she had not chosen to file any petition
for restitution of conjugal rights until 2009. Only after the appellant
received the notice in the petition for divorce filed by the respondent, she
filed the petition for restitution of conjugal rights. That apart, the filing of
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C.M.S.A.(MD) Nos.23 & 24 of 2015
the petition for restitution of conjugal rights by the appellant was not a
genuine attempt for reunion, as it was contrary to the allegations made by
her in the criminal case, as can be seen from Ex.P4. Ex.P4 is the final
report filed by the police against the respondent for the offences
punishable under Sections 498A, 406, 506(ii) & 420 of IPC, Section 4 of
the Dowry Prohibition Act, 1961, and Section 4 of the Tamil Nadu
Prohibition of Harassment of Women Act, 1998, on the FIR lodged by the
appellant. In the aforementioned final report, there are allegations that the
appellant was chased away from the matrimonial home for not bringing
dowry. It is also seen from the records that in an earlier complaint filed
before the police, the appellant sought for the return of the jewels and
other articles and the same were handed over at the instance of the police
by the respondent.
10. The evidence of the witnesses examined on the side of the
respondent and the appellant would suggest that the appellant has not
established that she had sufficient cause for leaving the matrimonial
home. On the other hand, the evidence suggests that she left the
matrimonial home taking all her belongings when the respondent refused
to seek partition of his joint family properties. Further, the allegation that
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C.M.S.A.(MD) Nos.23 & 24 of 2015
the respondent demanded dowry for reunion has been disbelieved by the
lower appellate court since the allegations were vague and the witnesses
examined on the side of the appellant were not believable.
11. The factual finding of the lower appellate court is based on the
evidence on record. Therefore, this Court finds no reason to interfere with
the findings of the lower appellate court.
12. Though the appellant claims that there are substantial questions
of law, the grounds raised are factual in nature and do not raise any
question of law, much less a substantial question of law, so as to entertain
these appeals. Admittedly, the appellant and the respondent have been
living separately since 2003, and the appellant has also chosen to
prosecute the respondent for the offenses punishable under the Indian
Penal Code, the Dowry Prohibition Act, 1961, and the Tamil Nadu
Prohibition of Harassment of Women Act, 1998. The facts reveal that the
marriage is dead.
13. In any case, the factual finding of the lower appellate court
cannot be disturbed, as it is neither perverse nor illegal. As stated earlier,
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C.M.S.A.(MD) Nos.23 & 24 of 2015
this second appeal cannot be entertained in the absence of any substantial
questions of law warranting interference of the Judgments of the lower
appellate court. Hence, the judgments of the lower appellate court
allowing the petition for divorce and dismissing the petition for restitution
of conjugal rights are in accordance with law and are therefore confirmed.
14. In the result, these Civil Miscellaneous Second Appeals are
dismissed. No costs. Consequently, the connected Miscellaneous Petition
is closed.
03.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The District Judge,
Sivagangai District,
Sivagangai.
2.The Subordinate Judge,
Devakottai,
Sivagangai District.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.S.A.(MD) Nos.23 & 24 of 2015
SUNDER MOHAN, J.
JEN
Pre-Delivery Common Judgment made
in
C.M.S.A.(MD) Nos.23 & 24 of 2015
and
03.10.2024
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