Madras High Court
V.Subramaniyan vs P.Murugeshwari @ Muthamizhselvi on 26 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A(MD) Nos.446 & 447 of 2022
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 HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A(MD) Nos.446 & 447 of 2022
V.Subramaniyan ... Appellant / Respondent
in both C.M.As
Vs.
P.Murugeshwari @ Muthamizhselvi
... Respondent / Petitioner
in both C.M.As
Prayer in C.M.A.(MD)No.446 of 2022: Civil Miscellaneous Appeal
filed under Section 28 of the Hindu Marriage Act, 1955, to set aside the
Judgment and decree dated 21.02.2022 in H.M.O.P.No.100 of 2020 on
the file of the Family Court, Karur and allow the above appeal.
Prayer in C.M.A.(MD)No.447 of 2022: Civil Miscellaneous Appeal
filed under Section 28 of the Hindu Marriage Act, 1955, to set aside the
Judgment and decree dated 21.02.2022 in H.M.O.P.No.11 of 2021 on the
file of the Family Court, Karur and allow the above appeal.
1/13
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C.M.A(MD) Nos.446 & 447 of 2022
For Appellant : Mr.V.Muthukamatchi
For Respondent : Mr.H.Mahendran
(in both C.M.As)
COMMON ORDER
(Order of the Court was made by G.R.SWAMINATHAN, J.)
Heard both sides.
2. The appellant V.Subramaniyan got married to P.Murugeshwari
@ Muthamizhselvi on 06.02.2011 as per Hindu rites and customs. The
appellant is a practicing lawyer. The respondent is employed as
Assistant Professor in English in Government College. The appellant
filed H.M.O.P.No.11 of 2021 on the file of the Family Court, Karur for
dissolving the marriage. A male child Vaitheeswaran was born through
the wedlock on 08.11.2011. The respondent / wife filed H.M.O.P.No.100
of 2020 for restitution of conjugal rights. Both HMOPs were tried
together. The appellant examined himself as P.W.1. One Manavalan /
relative was examined as P.W.2. Ex.P1 to Ex.P15 were marked. Wife
examined herself as D.W.1. Two other witnesses were examined on her
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C.M.A(MD) Nos.446 & 447 of 2022
side. Ex.R1 to Ex.R13 were marked on the side of the respondent. After
considering the evidence on record, the trial Court allowed HMOP filed
by wife and dismissed HMOP filed by the husband. Aggrieved by the
dismissal of H.M.O.P.No.11 of 2021, C.M.A.(MD)No.447 of 2022 has
been filed. As against the order made in H.M.O.P.No.100 of 2020,
C.M.A.(MD)No.446 of 2022 has been filed.
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds of appeal. The
learned counsel submitted that the appellant had convincingly established
that the wife was guilty of cruelty as well as desertion. According to the
learned counsel, the court below had not correctly appreciated the
evidence on record. He added that the parties are remaining separate for
several years and that this itself is ground enough to grant the relief of
divorce. He called upon this Court to bear in mind the fact that the
relationship between the parties has irrevocably broken down. He called
upon this Court to set aside the impugned Judgment and allow both the
appeals.
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C.M.A(MD) Nos.446 & 447 of 2022
4. Per contra, the learned counsel appearing for the respondent
submitted that the impugned Judgment is well reasoned and that it does
not call for interference.
5. We carefully considered the rival contentions and went through
the materials on record.
6. The only point that arises for determination is whether on the
basis of the evidence on record, one can conclude that wife / respondent
herein was guilty of cruelty and desertion. The marriage between the
parties had taken place on 06.02.2011. The marriage was admittedly
consummated and the child was born in the same year. It was the
appellant who sought the relief of divorce. He cannot be granted the said
relief for the asking. The burden is on the appellant to prove that he had
made out a case for dissolving the marriage. To do so, the appellant must
show that his wife had committed one of the acts of misconduct set out in
Section 13 of the Hindu Marriage Act, 1955. According to the appellant,
his wife was guilty not one but two acts of misconduct. He would allege
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that wife had treated him with cruelty and she is also guilty of desertion.
7. Let us take up the second ground first for consideration. Section
13(1)(ib) of the Hindu Marriage Act states that marriage can be dissolved
at the instance of the petitioner if the respondent had deserted the
petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petitioner.
8. It is well settled that the essence of desertion is forsaking and
abandonment of one spouse by the other without reasonable cause and
without consent or against the wish of the other. To prove this ground,
one must establish that there was not only a factum of separation but also
the intention to bring cohabitation permanently to an end.
9. In this case, the factum of separation has been established. But
that alone is not sufficient. Animus or intention on the part of the wife
must also be brought out. The appellant had marked as many as 15
exhibits on his side. Vide Ex.P8-legal notice dated 13.07.2020, the
appellant had only demanded divorce by mutual consent. He had not
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taken any steps for reunion.
10. On the other hand, the conduct of the respondent / wife is
otherwise. She was originally transferred to the Government College,
Karur from Trichy. She had been applying every year to the authorities
for transferring her back to Trichy. Ex.R8 are the series of applications
submitted by wife from the year 2014-15 to 2019-20. This shows that
the wife wanted to save the marriage somehow. It was the wife who filed
H.M.O.P.No.100 of 2020 for restitution of conjugal rights. A person
who wants re-union cannot be said to be guilty of desertion. The act of
filing a petition under Section 9 of the Hindu Marriage Act itself falsifies
the allegations made by the appellant. The wife is employed in a
Government job. Transfer is an incident of Government service. She
was transferred from Trichy to Karur. There is nothing on record to
show that transfer from Trichy to Karur was at her instance. This cannot
be characterized as an act of desertion on the part of the wife. The
matrimonial home may be at place “A”. If the wife has to move to place
“B” on the ground of transfer which is an incident of service, that cannot
be labelled as an act of desertion on the part of the wife. The court below
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after a careful consideration of the entire evidence on record rightly came
to the conclusion that the ground of desertion alleged by the husband has
not been established.
11. The other ground pleaded by the husband is that the respondent
herein had treated him with cruelty. In support of the allegation, the
appellant had referred to the following instances:-
A. she took back the seedhana articles.
B. The respondent's parents did not extend the customary
invitation to visit their house following the solemnization of
marriage.
C. The respondent never lived with him.
D. The appellant was unnecessariy dragged into a
quarrel between the respondent and the neighbours of the
respondent's family at the instance of the respondent. As a
result, FIR was registered against him.
D. She refused to move into a rented house in Trichy.
E.He was constantly humiliated by the family of the
respondents.
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F. On 02.10.2011, the petitioner and his family were not
informed about the baby shower ceremony. On the day the
child was born, the appellant's mother was not allowed to lift
the child.
G. The appellant and his family were not even invited for
the naming ceremony of the child.
H. She deliberately sought transfer to Karur without
informing the appellant.
I. The respondent threatened to file a complaint under
Domestic Violence Act against the appellant and his family
members.
12. In support of the above allegations, the appellant examined
himself and a relative by name Manavalan. The evidence of the relative
(P.W.2) was found to be utterly worthless by the court below as he was
unable even to state the name of his brother and sister-in-law. Therefore,
the appellant's case rests exclusively on his evidence. The court below
had analyzed the evidence on record meticulously and found that none of
the allegations made by the appellant would hold good. For instance,
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dealing with the allegation that his mother was not allowed to lift the
child after birth, the court below noted that the child was a premature
baby and was born with complications. It was therefore medically
advised that except the mother, others should sanitize their hands and
then only lift the baby. When the appellant's mother visited the hospital,
this instruction was given to her. There is nothing to take amiss in this.
13. As regards failure to invite the appellant for baby shower
ceremony, the appellant admitted that the function itself took place in the
appellant's house only. Therefore, the court below concluded that his
allegation that he was not invited was unbelievable and intrinsically
improbable. There is also no merit in the appellant's claim that the
respondent initially did not live with him. Admittedly, the marriage was
consummated and a male child was also born in the very same year of
marriage. The baby shower ceremony was also celebrated in the house
of the appellant. Some misunderstanding must have developed only in
the year 2012 when the wife was transferred to Karur. We have already
held that wife cannot be expected to give up her Government job and
stay with the husband. The appellant knew about the government job of
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the respondent even prior to marriage. He must have been aware of the
possibilty of transfer too. When a spouse has to pursue her career, she
has to necessarily comply with the incidental obligations. Therefore, the
husband and wife will have to balance these aspects and mutally respect
each other. The appellant is not justified in blaming the wife for
complying with the transfer order. Even though the appellant would
claim that wife sought transfer to Karur, there is no material to prove the
same.
14. Clinching evidences against the appellant are Ex.R12 &
Ex.R13. Ex.R12 is the wedding invitation card of one R.W.3-Giritharan.
In the invitation card, name of the appellant and the respondent have
been mentioned as special invitees. Ex.R13 is the photograph taken on
the occasion. The appellant and the respondent along with child are
found with the couple. The fact that as late as 18.03.2018, the parties
have been seen together indicates that the matters have not reached any
breaking point. If according to the appellant, the respondent had treated
him with cruelty, he would definitely not have joined to attend the
wedding function. He would have also raised objection to including his
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name along with that of the respondent. By this singular conduct, the
appellant can be said to have condoned any lapse on the part of the
respondent, if any.
15. The appellant had marked Ex.P5 voice recording purporting to
prove to the court the words uttered by the respondent herein. The court
below came to the conclusion that the said CD containing the recording
has not been proved and refused to lend any credence to its contents. In
any event, this dates back to the year 2012. Since the respondent had
proved that they had gone to the wedding function together along with
the child in marriage 2018, we do not want to attach any importance to
the events that had taken place earlier. When the respondent is not at
fault, it would be grossly unfair to dissolve the marriage at the instance
of the appellant. The appellant had alleged in his petition that he is not
able to reach out to his son and that her sons's mind has been poisoned by
the respondent. We directed the parties to be present in person before us.
When the son addressed the appellant as “Appa”, the appellant did not
even bother to respond. Even though we nudged the appellant to hold his
son and talk to him affectionately, the appellant refused to do so. He was
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constantly harping on the conduct of the respondent in seeking transfer
behind his back. We therefore come to the conclusion that the allegations
made in this regard are also without any substance.
16. The court below, after carefully considering and appreciating
the entire evidence on record, had allowed the petition for restitution of
conjugal rights and dismissed the petition for divorce. We are unable to
take a different view.
17. Both the Civil Miscellaneous Petitions stand dismissed. No
costs.
(G.R.S., J.) (R.P., J.)
26.02.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
rmi
To
The Family Court, Karur.
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C.M.A(MD) Nos.446 & 447 of 2022
G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
rmi
C.M.A(MD) Nos.446 & 447 of 2022
26.02.2025
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