Madras High Court
Muthulakshmi vs Murugan on 19 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
CMA(MD).No.854 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced on : 19.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.854 of 2022
and
C.M.P.(MD)No.12752 of 2022
Muthulakshmi .... Appellant /
Respondent
Vs.
Murugan ... Respondent /
Petitioner
PRAYER : Civil Miscellaneous Appeal is filed under Section 19(1) of
the Family Court Act, 1984 to set aside the fair and decreetal order dated
06.06.2022 made in HMOP.No.40 of 2020 before the Family Court,
Thirunelveli.
For Appellant : Ms.Vilma Rexy
For Respondent : Mr.A.Rajaram
1/6
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CMA(MD).No.854 of 2022
JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
Heard both sides.
2.The marriage between Murugan and Muthulakshmi was
solemnized on 08.06.2016 at Arulmigu Salaikumara Swamy Kovil,
Tirunelveli as per Hindu rites and customs. For Murugan this was his
second marriage. His first marriage with one Padmavathy @ Alamelu
was dissolved as per law. The parties appear to have lived together
under one roof for over 3 years. No child was born through the wedlock.
After the relationship between the parties came under strain in August
2019, Muthulakshmi has been residing alone in the upstairs portion.
Alleging that the conduct of Muthulakshmi amounted to cruelty,
Murugan filed HMOP.No.40 of 2020 on the file of Family Court,
Tirunelveli for divorce. Muthulakshmi filed HMOP.No.2 of 2020 before
the same Court for restitution of conjugal rights. Murugan examined
himself as PW1. His brother Sivakumar was examined as PW2. Ex.P1
to EX.P17 were marked. Muthulakshmi examined herself as RW1.
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Ex.R1 to Ex.R7 were marked. After considering the evidence on either
side, the Court below vide common order dated 06.06.2022 allowed
Murugan's petition for divorce and dismissed Muthulakshmi's petition
for restitution. Challenging the same, Muthulakshmi has filed
CMA(MD)No.854 of 2022 questioning the order allowing HMOP.No.40
of 2020 filed by her husband Murugan. Murugan sought divorce on the
following grounds:
a) He married Muthulakshmi so that not only he can lead a happy
life but also take care of his aged mother; Muthulakshmi refused to serve
his mother. She also insisted that he should drive away his mother.
b) His further allegation is that Muthulakshmi would not cook any
food for the family. In support of this allegation, he examined himself as
well as his brother. The Court below however chose to believe the
husband's testimony and grant relief.
3.Though we were inclined to consider the contentions advanced
by the learned counsel appearing for Muthulakshmi / appellant herein,
our hands are tied. What is impugned before us is actually a common
order dated 06.06.2022 passed by the learned Family Judge, Tirunelveli.
By the said order, the Court below not only allowed Murugan's divorce
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petition but also dismissed Muthulakshmi's petition for restitution of
conjugal rights. In the very nature of things, Muthulakshmi was obliged
to have filed two appeals. She has not done so. Even if we wanted to
overlook this technical lapse on her part, in the CMA prayer,
Muthulakshmi wanted us to set aside only the order made in HMOP.No.
40 of 2020. The CMA prayer is silent as regards the restitution petition.
If only Muthulakshmi had also prayed for setting aside the order made in
HMOP.No.2 of 2020, may be we could have considered the issue on
merits. It cannot be that the relief of divorce sought by the husband is
denied even while rejecting the claim for restitutionary relief by the wife.
The result will be that the parties would remain separate and the marital
tie would remind intact. Such a situation is inconceivable. Since the
appellant has not sought setting aside of the common order in toto, we
have to reluctantly sustain the impugned order. We take note of the fact
that Muthulakshmi is presently residing in the upstairs portion. It
appears that she had also earlier made a maintenance claim.
Muthulakshmi cannot be illegally dispossessed merely because this CMA
has been dismissed. She has to be dealt with only in the manner known
to law.
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4.It is well settled that the expression “wife” would also include
the “divorced wife”. Therefore, the claim for maintenance also will have
to be dealt with independently. We have declined to interfere with the
divorce order only on a technical ground and not on merits.
5.With these observations, this Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
(G.R.S., J.) & (R.P., J.)
19.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
MGA
To
The Family Court,
Thirunelveli.
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G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
MGA
19.03.2024
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