Madras High Court
V.T.Murugan vs M.Chitirai Selvi on 4 September, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.M.A.(MD)Nos.678 and 679 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.A.(MD)Nos.678 and 679 of 2017
V.T.Murugan ... Appellant in
both C.M.As.
versus
M.Chitirai Selvi ...Respondent in
both C.M.As.
PRAYER in C.M.A.(MD)No.678 of 2017: Civil Miscellaneous Appeal is filed
under Section 19 of Family Court Act, to set aside the order and decree made in
H.M.O.P.No.419 of 2009 dated 29.05.2017 on the file of the Family Court,
Madurai.
PRAYER in C.M.A.(MD)No.679 of 2017: Civil Miscellaneous Appeal is filed
under Section 19 of Family Court Act, to set aside the order and decree made in
H.M.O.P.No.460 of 2016 dated 29.05.2017 on the file of the Family Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.678 and 679 of 2017
For Appellant
in both C.M.As. : Mr.M.Thirunavukkarasu
For Respondent
in both C.M.As. : Mr.C.Jawahar Ravindran
COMMON JUDGMENT
(Judgment of the Court was delivered by P.VELMURUGAN,J.)
The appellant herein is the husband of the respondent. The respondent/wife
filed a petition in H.M.O.P.No.419 of 2009 before the Family Court, Madurai,
seeking restitution of conjugal rights. The appellant/husband also filed a petition
in H.M.O.P.No.76 of 2013 before the Sub Court, Ramanathapuram, seeking
dissolution of marriage. Thereafter, the petition in H.M.O.P.No.76 of 2013 filed
by the appellant/husband was transferred to the Family Court, Madurai and
renumbered as H.M.O.P.No.460 of 2016. Since both the petitions were arising
out of the matrimonial disputes, both the cases were taken up together and a
common order was passed by the Family Court, Madurai.
2. The case of the appellant/husband is that their marriage was solemnized
on 30.08.1996. Out of the wedlock, they were blessed with three children and
lived together. After sometime, the respondent/wife has not discharged her duty
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C.M.A.(MD)Nos.678 and 679 of 2017
as a dutiful wife and also made a false complaint not only against him, but also
against his parents and sisters. Based on the false complaint, a case was registered
in Crime No.14 of 2010 and after the filing of the charge sheet, the case was
taken on file in C.C.No.62 of 2010 on the file of the Judicial Magistrate,
Rameswaram. After trial, the criminal case was also ended in acquittal. She left
the matrimonial home even in the year 2009 and till the filing of the divorce
petition, she never turned up to live along with him, which caused mental agony
to him. Further, she deserted him without any valid reasons. Therefore, he has
filed a petition for divorce on the ground of cruelty and desertion.
3. The case of the respondent/wife is that after the marriage, she led the
matrimonial life at Madurai. Thereafter, they went to Rameshwaram in the year
2005 and they lived together. Out of the wedlock, they were blessed with three
children and she was living happily in the matrimonial home. While so, the
appellant had developed illegal intimacy with another woman and made her as
mother to his children. Therefore, she gave a complaint as against the appellant
before the All Women Police Station, Rameshwaram in the year 2008. After the
trial, the criminal case was ended in acquittal on the ground of benefit of doubt.
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C.M.A.(MD)Nos.678 and 679 of 2017
It is the further case of the respondent that she was ready and willing to live along
with her husband, despite her husband having illegal intimacy with another
woman. Further, the appellant/husband did not take care of his wife and children.
Therefore, she filed an application seeking maintenance. Despite the order of the
Court, he has not paid the maintenance amount. But, the appellant has filed a
divorce application, by making false allegations.
4. In H.M.O.P.No.419 of 2009, on the side of the wife, she herself
examined as P.W.1 and seven documents were marked. On the side of the
husband, he himself examined as R.W.1 and 11 documents were marked. In
H.M.O.P.No.460 of 2016, on the side of the husband, he himself examined as
P.W.1 and eight documents were marked and on the side of the wife, she herself
examined as R.W.1 and no documents were marked. After considering the oral
and documentary evidence, the learned Judge, Family Court, Madurai, by a
common order dated 29.05.2017, allowed the petition in H.M.O.P.No.419 of 2009
filed by the wife and dismissed the petition in H.M.O.P.No.460 of 2016 filed by
the husband. Aggrieved over the same, the husband has filed both the Civil
Miscellaneous Appeals before this Court.
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C.M.A.(MD)Nos.678 and 679 of 2017
5. Heard the learned counsel appearing for the appellant and the learned
counsel appearing for the respondent herein.
6. The appellant/husband is seeking divorce only on the ground of cruelty
and desertion. As far as the cruelty is concerned, though the appellant has made
several allegations, the main allegation is that the respondent/wife made a false
complaint as against him, which would amount to cruelty. The respondent/wife
filed a complaint against the appellant before the All Women Police Station,
Rameshwaram, based on which, a case in Crime No.14 of 2010 was registered
and after the completion of investigation, the Investigating Officer laid the charge
sheet before the Judicial Magistrate Court, Rameshwaram and the same was taken
on file in C.C.No.62 of 2010. After the trial, the criminal case was ended in
acquittal on the ground of benefit of doubt in favour of the appellant herein. If at
all, the complaint filed by the respondent is a false one, the investigation would
have been ended by mistake of fact. Even otherwise, if the investigating officer
laid the charge sheet, the appellant would have filed a petition before this Court to
quash the FIR or to discharge him from the charges. But, the appellant has not
taken any steps either to file a petition to quash the FIR or to file a petition to
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C.M.A.(MD)Nos.678 and 679 of 2017
discharge him from the charges. Merely because the appellant has not filed a
petition under Section 482 Cr.P.C. seeking to quash the FIR or a petition under
Section 239 Cr.P.C, seeking to discharge him from the charges, it does not mean
that the appellant has committed the offence. Even after the trial, the learned
Judicial Magistrate, Rameshwaram, acquitted the appellant on the ground of
benefit of doubt. But, the learned Judicial Magistrate has not made any
observation that the complaint lodged by the respondent is a false one and the
allegations levelled by the respondent/wife were disproved during the trial.
Since the appellant/husband has not proved the allegations made by the
respondent, the Family Court has rightly dismissed the petition filed by the
appellant/husband seeking for divorce on the ground of cruelty.
7. Though the learned counsel appearing for the appellant has placed
reliance on the decision of the Hon'ble Supreme Court reported in Joydeep
Majumdar vs. Bharthi Jaiswal Majumdar reported in (2021) 3 SCC 742 and the
decision of the Delhi High Court in Pinki Jain v. Sanjay Jain reported in 2005
(0) Supreme (Del) 108, in support of his contention, there is no dispute on the
proposition of law that if one of the spouses gave a complaint against the other
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C.M.A.(MD)Nos.678 and 679 of 2017
spouse, the aggrieved spouse can seek remedy of divorce on the ground of mental
cruelty. But, in this case, though the appellant/husband seeks divorce on the
ground of cruelty that the respondent/wife lodged a false complaint against him
and his family members, which amounts to mental cruelty and the criminal case
registered against the husband was acquitted on the ground of benefit of doubt,
there is no finding that the respondent/wife has made a false complaint as against
the appellant/husband. Therefore, the decisions relied upon by the learned
counsel for the appellant are not applicable to the present case on hand.
8. As far as the desertion is concerned, the respondent, during her cross
examination, stated that the appellant is not taking care of her and her children
and he is also having illicit intimacy with another woman. Therefore, she left the
matrimonial home. Though she has given valid reasons for not living in the
matrimonial home, still, she is willing to live along with her husband for the
welfare of the children. Further, she has also filed the petition under Section 9 of
the Act for restitution of conjugal rights. Therefore, the appellant is not entitled
to get divorce on the ground of desertion. If at all, the appellant is entitled for
divorce on the ground of desertion, it is for the appellant to prove that the
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C.M.A.(MD)Nos.678 and 679 of 2017
respondent/wife left the matrimonial home without any valid reason. But, in this
case, the appellant has failed to prove the same. Since the appellant has failed to
prove that the respondent/wife left the matrimonial home without any valid
reason, he is not entitled for divorce on the ground of desertion. Further, the
respondent/wife is ready and willing to live with the appellant for the welfare of
the children. Therefore, the Family Court has rightly dismissed the petition filed
by the appellant/husband seeking divorce on the ground of desertion. This Court,
being a fact finding Court, while re-appreciating the evidence, does not find any
reason to interfere with the findings of the Family Court, Madurai.
9. In the result, both the Civil Miscellaneous Appeals are dismissed.
No costs.
[P.V.,J.] [K.K.R.K.,J.]
04.09.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ogy
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.678 and 679 of 2017
To
1. The Family Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.678 and 679 of 2017
P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN,J.
ogy
C.M.A.(MD)Nos.678 and 679 of 2017
04.09.2024
https://www.mhc.tn.gov.in/judis
