Madras High Court
M.Sivasubramani vs P.Kavitha on 20 February, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
2025:MHC:512
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.02.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MS. JUSTICE R.POORNIMA
C.M.A(MD)No.1605 of 2024
M.Sivasubramani ... Appellant/Petitioner
.Vs.
P.Kavitha ... Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act praying this Court to set aside the fair and decretal order made in
H.M.O.P.No.174 of 2019, dated 14.10.2019, on the file of Family Court, Madurai
For Appellant : Mr.S.Gokul Raj
For Respondent : Mr.S.Malaikani
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JUDGMENT
DR.G.JAYACHANDRAN., J
AND
R.POORNIMA.,J
The Civil Miscellaneous Appeal is directed against the fair and decretal
order made in H.M.O.P.No.174 of 2019, dated 14.10.2019, on the file of Family
Court, Madurai.
2.Heard the learned counsel appearing on either side and perused the
materials placed before this Court.
3.The husband is the appellant herein. His petition for restitution of
conjugal rights was dismissed by the Family Court, Madurai vide order, dated
14.10.2019.The short point involved in this case is that the appellant got married
to the respondent on 10.11.2014. A female child was born to them on
13.4.2016.The appellant was employed as Assistant Professor in Cheran
College of Engineering, Karur, whereas, the respondent was employed as Sub-
Divisional Engineer, BSNL, Madurai. The dispute between the parties arose when
both of them insisting the other one to get transfer to the place of their present
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working. This has lead to separation and the contention of the appellant is that
due to ill advise of her parents, the respondent is not inclined to get transfer
from Madurai to Karur, though there is every possibility of getting transfer. His
further allegation is that the parents of the respondent wants the appellant to be
‘’Veetu Mappilai’’ and settle at Madurai, for which, the appellant opposed. Since
the respondent has voluntarily withdrawn from the marital company of the
appellant, petition is filed for restitution of conjugal rights under Section 9 of the
Hindu Marriage Act.
4.The trial Court, after appreciating the evidence of the Petitioner and
respondent, held that the respondent is living in Madurai in view of her
employment and hence, she cannot be forced to resign her job and join with the
appellant,who has settled at Karur and employed in a Private Engineering
College at Karur. Unless and until, withdrawal from the marital society
voluntarily without any reason, the application for restitution of conjugal rights
cannot be entertained.
5.According to the learned counsel for the appellant, cross-examination of
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D.W.1 discloses the intention of the respondent/wife that she is not ready to live
with the appellant at Karur. When there is no valid reason for the respondent/wife
to get transfer of her job or resign the job and join the appellant to save the
marital life, the Court below ought not to have dismissed the Petition for
restitution of conjugal rights. The appellant would further submit that though the
respondent without any reason withdrew from the marital society within a year of
the marriage, he waited for more than a year to file the Petition for restitution of
conjugal rights. Therefore, the trial Court is not correct to say that the appellant
has rushed to the Court for the prayer sought. It is also contended that even
before marriage, the respondent promised that she will get transfer from
Madurai to Karur. However, in the breach of promise, she later decided to stay at
Madurai, which tantamount to desertion.
6.The records indicate that within six months of marriage, the marital
relationship between the appellant and the respondent got strained. The grievance
of the appellant is that he was not respected by the family members of the
respondent and he was forced to shift the marital home from Karur to Madurai.
Further grievance of the appellant is that the father of the respondent assured
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that he will get transfer of his daughter from Madurai to Karur using his
influence, but, he failed in his promise.
7.This Court, on appreciation of evidence of P.W.1 and R.W.1, could easily
see that incompatibility and rigidity among the spouses has caused the personal
separation. The respondent, admittedly, is not inclined to join the appellant at
Karur. However, she has valid reason for the said intention. Her employment at
Madurai was even prior to the marriage. The appellant had married the
respondent knowing well that she is employed in Madurai.
8.According to the appellant, the family members of the respondent made
him to believe that they will arrange for her transfer from Madurai to Karur.
Transfer from one place to another place in BSNL is subject to various factors
and not within the exclusive discretion, right or power of the respondent. Being
an educated person, the appellant ought to have thought of an alternate to save
the marital relationship instead of approaching the Court by filing petition for
restitution of conjugal rights. When there is no wilful and wanton withdrawal
from the marital company, Section 9 cannot be invoked .The trial Court has
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rightly held, in which, this Court also endorsed.
9.For the reasons stated above, the Civil Miscellaneous Appeal stands
dismissed. The appellant is at liberty to work out his remedy by filing petition
under other provisions either to mend the constrained relationship or to break it
amicably. No costs.
[G.J.,J.] [R.P.,J.]
20.02.2025
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
To
The Judge,
Family Court,
Madurai.
Copy to
The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
and
R.POORNIMA,J.
vsn
JUDGMENT MADE IN
20.02.2025
https://www.mhc.tn.gov.in/judis
