Madras High Court
S.Arivazhahan vs B.Gayathri on 26 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 C.M.A.(MD)NO.569 OF 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 31.01.2025
PRONOUNCED ON : 26.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R. POORNIMA
C.M.A.(MD)Nos.569 & 570 of 2021
S.Arivazhahan ... Appellant / Petitioner
in both CMAs.
Vs.
B.Gayathri ... Respondent / Respondent
in both CMAs.
Common Prayer: Civil Miscellaneous Appeals filed under
Section 19 of the Family Courts Act, 1984, r/w. Order 41 Rule 1, to
set aside the judgment and decree passed in H.M.O.P.Nos.106 and
105 of 2017 on the file of the Family Court, Trichy dated 31.03.2021
and allow the civil miscellaneous appeal.
(In both CMAs.)
For Appellant : Mr.C.Vakeeswaran
For Respondent : Mr.T.A.Punithan
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2 C.M.A.(MD)NO.569 OF 2021
COMMON JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
The marriage between S.Arivazhahan and B.Gayathri
(parties herein) was solemnised on 23.05.2007 as per Hindu rites
and customs. A girl child was born through the wedlock on
10.11.2008. Arivazhahan was employed as a teacher in Kendriya
Vidhyala. He was then employed in Chennai. Since Arivazhagan was
employed in Chennai during the year 2007, the matrimonial home
was in Chennai. According to him, his wife left the matrimonial home
in March 2008 itself. Alleging that the acts of the wife amounted to
cruelty under Section 13(1)(i-a) of the Hindu Marriage Act,
Arivazhahan filed divorce petition before the Family Court at
Chennai. Gayathri filed petition under Section 9 of the Act seeking
restitution of conjugal rights. Both the OPs. were transferred to the
Family Court, Thiruchirappalli and renumbered as H.M.O.P.Nos.106
of 2017 and 105 of 2017. Arivazhagan was the petitioner in
H.M.O.P.No.106 of 2017, while Gayathri was the petitioner in
H.M.O.P.No.105 of 2017. Both the OPs. were tried together.
Arivazhahan examined himself as P.W.1 and marked Ex.P.1 to Ex.P.
16. Gayathri examined herself as R.W.1 and Ex.R.1 to Ex.R.7 were
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marked. After hearing both the parties and after considering the
evidence on record, the learned Family Judge, Thiruchirappalli vide
common order dated 31.03.2021 allowed H.M.O.P.No.105 of 2007
and dismissed H.M.O.P.No.106 of 2017. Questioning the same,
Arivazhagan filed these two civil miscellaneous appeals.
2. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of grounds
of appeal. He emphasized the fact that the parties have been residing
separately for the last several years and the marriage has suffered an
irretrievable break down. According to him, this itself would
constitute cruelty and prayed for severance of the marital tie.
3. Per contra, the learned counsel appearing for the
respondent submitted that the impugned judgment is well reasoned
and that it does not call for any interference.
4. We carefully considered the rival contentions and went
through the evidence on record.
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5. The points for determination are as follows:-
(i) Whether the appellant had proved that the acts of the
respondent constitute cruelty within the meaning of Section
13(1)(i-a) of the Hindu Marriage Act, 1955?
(ii) Whether the marriage between the parties should be
dissolved on the ground that the parties have been residing apart
from each other for the last several years?
6. The appellant examined himself as P.W.1. The allegations
made against the respondent are as follows:-
(a) The respondent never took part in household chores
such as cooking. As a result, the appellant had to often take food
outside.
(b) She often threatened to return to her parents' house or
commit suicide.
(c) She expressed disgust in handling the articles of the
appellant.
(d) She had taken back all the jewellery given at the time of
marriage.
(e) The respondent did not even inform the appellant about
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the birth of the girl child.
(f) The respondent was utterly indifferent towards the
appellant.
7. The appellant was cross examined. The appellant
admitted that his wife conceived and suffered abortion for which
treatment was taken in Best Hospital, at Kodambakkam, Chennai. He
also admitted that within six months, she conceived again. Since the
wife wanted to wear her jewellery, at her request the appellant
handed over the jewels which were kept in bank locker.
8. The Court below took note of the conduct of the
appellant. Though the appellant was employed as a Teacher in
Kendriya Vidhyalaya and was earning close to a lakh of rupees, he
was not maintaining his family. Therefore, the wife had to file M.C.No.
23 of 2015. She also sought interim maintenance. In the said case, the
appellant filed I.A. for subjecting the child to DNA / paternity test.
The results of the paternity test confirmed that it was the appellant
who was the father of the girl child.
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9. From this single circumstance, we would conclude that it
is the act of the appellant that amounts to cruelty. The appellant
admits his marriage with the respondent. A child was born through
the lawful wedlock. It is really too much on the part of the appellant
to question the paternity of the child. The appellant has virtually
impeached the integrity and chastity of the respondent.
10. Even according to the appellant, separation from the
respondent took place in March 2008 itself. The marriage had taken
place only on 23.05.2007. During this period, the respondent
suffered abortion and six months later, she conceived once again.
Admittedly, the child was born on 10.11.2008. This means that the
conception must have taken place in January 2008. This itself
indicates that there was cordial relationship between the parties
atleast up to January 2008. Nothing substantial could have taken
place between January 2008 and March 2008.
11. The child was christened “Siru Nagai”. The appellant
admits that it was he who chose the name for the child. This also
indicates that the marital tie was intact till then. Therefore, the trial
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Court rightly did not attach much significance to the allegations
made by the appellant with regard to the conduct of the tonsuring
ceremony for the child.
12. It is beyond dispute that since 2008, till date the
appellant did not pay any maintenance for the wife and child. When
the child was sought to be admitted in Kendriya Vidyalaya, the
appellant / his father refused to extend his cooperation. Therefore,
the child could not secure admission in Kendriya Vidyalaya, the very
school in which the appellant is employed. The appellant had borne
the educational expenses of the child only for one year and that too
pursuant to the direction of the Court below.
13. It is true that the parties have been remaining separate
for the last several years. But on this ground, we are not inclined to
grant relief to the appellant. The foregoing facts would clearly
establish that the appellant miserably failed to discharge his
obligation as a married man. Even though the girl child had been
begotten, he did not even bother to attend to its most elementary
needs. It is true that M.C.No.23 of 2015 filed by the respondent
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herein suffered dismissal. Therefore, the wife may not be entitled to
any relief of maintenance in the absence of formal Court order. But
then, the appellant could not have defaulted on his obligations to
maintain his child. The testimony of the appellant has not been
corroborated in any manner.
14. It is a case of oath against oath. The Court had to believe
either the uncorroborated testimony of the appellant or that of the
respondent. From the overall conduct exhibited by the appellant, the
Court below has chosen to disbelieve his version as improbable and
go by the testimony of the respondent. The appellant has not paid a
single pie towards maintenance of his girl child for more than 15
years. The appellant questioned her very paternity by filing a petition
before the Court below. Even after the DNA results confirmed his
paternity, he did not chose to make amends. At no point of time, the
appellant took any initiative for settling his differences with his wife.
The appellant lived together with the wife for hardly eight months.
During this period, the respondent suffered abortion and conceived
again. In this background, we are of the view that the respondent's
version deserves greater credence. The respondent had expressed
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her desire for reunion. When the appellant issued notice, the
respondent gave reply notice immediately. She participated in the
proceedings. She examined herself. She withstood the cross
examination and her stand could not be shaken at all. She also filed a
petition for restitution of conjugal rights. The Court below rightly
dismissed the divorce petition filed by the husband and allowed the
petition filed by the wife. The Hon'ble Supreme Court in its recent
decision reported in 2024 LiveLaw (SC) 643 (Prabhavathi @
Prabhamani V. Lakshmeesha) held that irretrievable breakdown of
marriage can't be used to the advantage of the party responsible for
the collapse of marriage. The boggy of irretrievable breakdown of
marriage cannot be used to the advantage of a party who is solely
responsible for tearing down the marital relationship. The
appellant's misdemeanours were duly taken note of by the learned
Judge of the Family Court. We decline to interfere with the order
passed by the Court below.
15. At the same time, we need to render justice to the child.
Section 25 of the Hindu Marriage Act, 1955 is as follows:-
“25. Permanent alimony and maintenance.
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—(1) Any court exercising jurisdiction under this Act
may, at the time of passing any decree or at any time
subsequent thereto, on application made to it for the
purpose by either the wife or the husband, as the case
may be, order that the respondent shall pay to the
applicant for her or his maintenance and support such
gross sum or such monthly or periodical sum for a
term not exceeding the life of the applicant as, having
regard to the respondent’s own income and other
property, if any, the income and other property of the
applicant the conduct of the parties and other
circumstances of the case, it may seem to the Court to
be just, and any such payment may be secured, if
necessary, by a charge on the immovable property of
the respondent.
(2) If the court is satisfied that there is a
change in the circumstances of either party at any time
after it has made an order under sub-section (1), it
may, at the instance of either party, vary, modify or
rescind any such order in such manner as the court
may deem just.
(3) If the court is satisfied that the party in
whose favour an order has been made under this
section has re-married or, if such party is the wife, that
she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any
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woman outside wedlock, it may at the instance of the
other party vary, modify or rescind any such order in
such manner as the court may deem just.”
16. Since the appellant is drawing substantial salary, in the
interest of justice we direct the appellant to pay a sum of Rs.20,000/-
(Rupees Twenty Thousand only) per month towards the
maintenance of the child. The appellant's liability will commence
from 01.03.2025. These civil miscellaneous appeals are dismissed
with the aforesaid direction. No costs.
(G.R.SWAMINATHAN, J.) & (R. POORNIMA, J.)
26th February 2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The Judge,
Family Court, Trichy.
2. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
AND
R.POORNIMA, J.
PMU
C.M.A.(MD)Nos.569 & 570 of 2021
26.02.2025
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