T.Suresh Babu vs Vijila on 28 November, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28.11.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

C.M.A.(MD)Nos.324 of 2017 and 325 of 2017

T.Suresh Babu … Appellant in both
appeals

Vs.

Vijila … Respondent in
both
appeals

Prayer: Civil Miscellaneous Appeals are filed under Section 55 of the Indian
Divorce Act, 1869 against the judgment and decree passed in IDOP.No.376 of
2010 and 159 of 2011 dated 23.10.2013 on the file of the Principal District
and Session Judge of Kanyakumari District.

!For Appellant : Mr.R.Vijayakumkar

^For Respondent : No Appearance

:JUDGMENT

The appellant is the husband. The respondent is his wife. The
marriage between them took place on 20.08.2008 as per Christian rites and
customs. The appellant is employed as an Electrician. The respondent is
working as a Nurse. It is the specific allegation of the appellant that the
respondent did not come forward to consummate the marriage. He therefore
filed I.D.O.P.No.159 of 2011 on the file of the District Court, Nagercoil
under Section 10(1)(vii) of the Indian Divorce Act. In the meanwhile, the
respondent herein filed I.D.O.P.No.376 of 2010 on the file of the District
Court, Nagercoil seeking restitution of conjugal rights. The wife examined
herself as P.W.1 in I.D.O.P.No.376 of 2010 and marked Ex.P1 to P5. The
appellant herein examined himself as R.W.1 and also marked Ex.R1. In
I.D.O.P.No.159 of 2011, the appellant examined himself as P.W.1 and his
maternal uncle Johnson as P.W.2. He marked Ex.P1 to P6. The respondent
herein examined herself as R.W.1. The learned trial Judge disposed of both
the petitions on the same day, by orders dated 23.10.2013. I.D.O.P.No.376 of
2010 was allowed while I.D.O.P.No.159 of 2011 was dismissed. Challenging the
dismissal of I.D.O.P.No.159 of 2011, the husband filed C.M.A.(MD) No.325 of
2017. He filed C.M.A.(MD) No.324 of 2016 against the allowing of
I.D.O.P.No.176 of 2010.

2.Both the C.M.As were taken up together. Heard the learned counsel
R.Vijayakumar, appearing for the appellant. Notice was issued through the
Court to the respondent. Court notices were sent in her name to the address
given by the respondent in her petition. Notice had been received by one
Santhakumari, who has endorsed that she has the authority to receive the
notice. Name of the respondent viz., Vijila is mentioned in the cause list.
She has not chosen to engage a counsel.

3.The learned counsel appearing for the appellant would contend that
the appellant husband had clearly established his case by applying the
principle of preponderance of probability. The marriage took place on
20.08.2008. He left for Qatar in October 2008. He returned to India on
15.06.2009. The respondent lodged a police complaint against the appellant
on 27.06.2009. Her complaint was registered as C.S.R.No.178 of 2009 and an
enquiry into the same was held. The appellant was summoned by the police.
In the said police complaint lodged before the Sub Inspector of Police, All
Women Police Station, Kuzhithurai, the respondent had levelled an allegation
that she was a victim of domestic violence. But, on the same day, she had
given a handwritten letter dated 27.06.2009 informing the Inspector of All
Women Police Station, Kuzhithurai that there was difference of opinion
between her and her husband and that her husband left for Overseas employment
two months after the marriage and that he returned to the native place only
15 days earlier and that since her husband did not come forward for amicable
talks, she was constrained to lodge a police complaint. She further stated
in the said letter that there was an enquiry in the matter. The husband had
stated that he was not willing to live with her. The respondent wife
specifically mentioned that an understanding had been arrived at for
resolving the matter. A specific statement has been made to the effect that
by 15.07.2009, all the transactions would be concluded. Significantly, she
also stated that through Court they will obtain divorce.

4.This was followed by issuance of notice dated 27.10.2010 by the
appellant. In the said notice, the appellant made a specific allegation that
the respondent inspie of being a Nurse, behaved in a strange manner and
refused to have sexual intercourse with him. In the said notice, the events
that happened following the appellant’s return to India on 15.06.2009 and the
enquiry conducted in Kuzhithurai All Women Police Station are all referred
to. It is further stated in the notice that the respondent was not acting in
terms of the compromise arrived at. This notice was marked in I.D.O.P.No.159
of 2011 as Ex.P3. The respondent’s wife issued a reply notice dated
02.11.2010. It was marked as Ex.P5. The said reply notice deserves a
careful perusal. Though there is a formal denial of the allegations made by
the husband in his notice dated 27.10.2010, there is a specific allegation
that the appellant was willfully retaining the cash of Rs.2 lakhs.

5.As already stated, the respondent in her letter dated 27.06.2009
addressed to the Inspector of Police, All women Police Station, Kuzhithurai,
had agreed to receive a sum of Rs.2.00 lakhs apart from a few other jewellery
items and articles. The appellant agreed to hand over the same to the
respondent on the express understanding that it will be part of a mutual
consent divorce package. Since the respondent did not come forward for
amicably resolving the marriage by filing mutual consent divorce petition, he
had not handed over the cash amount of Rs.2.00 lakhs and other articles as
originally agreed. This reference to retention of a sum of Rs.2 lakhs in
the reply notice dated 02.11.2010 issued by the respondent completely
probablises the version projected by the appellant herein. The respondent
lodged a complaint on 27.06.2009. The same was registered as C.S.R.No.178 of
2009. The appellant was examined. There was an enquiry in the police
station. In the police station, the terms of understanding were reduced into
writing and both the parties had separately affixed their signatures.

6.The reply notice issued by the respondent is a very brief in its
contents. The respondent had described the appellant as a man having
peculiar quality and with a malafide intention alone, he refrained from the
respondent without any reason. One can infer from the use of the expression
?refrained? that there was no consummation of marriage.

7.The petition for restitution of conjugal rights filed by the wife was
allowed by the trial Court. Admittedly, the appellant was employed abroad.
Knowing this fully well, the respondent herein chose to file E.P.No.12 of
2014 on the file of the District Court, Nagercoil. Strangely, she sought the
arrest of the appellant and his detention in civil prison. Even more
strangely, an order of arrest was made. Since the appellant was abroad, he
did not receive notice in the execution petition. Therefore, publication in
an international news edition was made and an order of arrest was issued by
the executing Court on 22.12.2016. As per order 21 Rule 32 of C.P.C., a
decree for restitution of conjugal rights can be enforced only by attachment
of the properties of the respondent. This Court therefore stayed the
operation of the said order of arrest in C.M.P(MD) No.1241 of 2017 in
C.R.P.(MD) No.262 of 2017.

8.It is submitted by the learned counsel appearing for the appellant
that even though notice has been served in the said CRP, the respondent
herein has not chosen to enter appearance even in the said proceedings. The
fact that the respondent herein wanted the arrest and detention of the
appellant in civil prison clearly demonstrates her intention. The issue in
this case is whether the marriage between the parties was consummated or not.
The appellant herein has categorically deposed that the respondent was not
willing to have conjugal relationship with him. In a case of this nature,
one cannot obviously hope for any other corroborating circumstance. But, in
the present case, after taking the stand that the allegations levelled by the
appellant are false, it has been implicitly conceded that the marriage has
not been consummated.

9.It is relevant to mention here that the reply notice dated 02.11.2010
has been signed by the respondent also. Sequence of events also probablises
the case of the appellant. Admittedly, the appellant returned to India only
on 15.06.2009. The respondent lodged the police complaint on 27.06.2009.
The case of the appellant is that he attempted to have conjugal relationship
with the respondent and that the same was resisted by her. Therefore one can
come to the conclusion that this had led to the lodging of the police
complaint. In the police complaint, the respondent has not made any
reference to the appellant having been away from India. The marriage had
taken place on 20.08.2008. If really, the respondent was a victim of
domestic violence, she would have given a complaint immediately after the
marriage took place.

10.The appellant had also examined his maternal uncle Johnson as P.W.2.
The said Johnson had also attested the letter signed by the appellant before
the All Women Police Station, Kuzhithurai. He is therefore a person, who
appears to be acquainted with the facts and circumstances of the case. He
is an appropriate person to be examined as a witness to speak about what
happened between the parties.

11.The learned Judge had given a specific finding that the wife had
agreed for filing of mutual consent divorce petition before the Inspectof of
All Women Police Station, Kuzhithurai. However, the trial Judge had focussed
principally on the fact that the husband had not informed any person about
the conduct of his wife. But, this finding is not correct. P.W.2, maternal
uncle of the appellant was specifically informed about this and in fact, he
has deposed before the trial Court that at the instance of the appellant, he
attempted to compromise the matter. He was cross examined. He also deposed
that during the police enquiry, the respondent wife unconditionally agreed to
go for mutual consent divorce. The testimony of the said P.W.2 could not be
shaken during the cross examination. On the other hand, a suggestion was put
to the said P.W.2 that the respondent wife was ?now? physically ready and
willing for conjugal life and that she ?is now? ready for re-union. One and
only conclusion can flow from this, namely, that she was not originally fit
or ready or willing for normal conjugal life. A cumulative appreciation of
the evidentiary material on record can lead to only one conclusion viz., that
the respondent was willfully not ready to discharge her conjugal obligations.
Therefore, I come to the conclusion that the appellant has clearly made out
his case by applying the principle of preponderance of probability. The
orders dated 23.10.2013 in IDOP.No.376 of 2010 and 159 of 2011 on the file of
the Principal District and Session Judge of Kanyakumari District are set
aside. I.D.O.P.No.376 of 2010 is dismissed and I.D.O.P.No.159 of 2011 is
allowed. But, this is not the end of the matter. The appellant had agreed
to handover a sum of Rs.2 lakhs and 9-1/2 sovereignd gold to the respondent
herein. Since the respondent did not come forward to receive the same, he
could not deliver to her. The appellant is therefore directed to deposit a
sum of Rs.5 lakhs to the credit of I.D.O.P.No.159 of 2011 on the file of the
Principal District and Session Judge of Kanyakumari District, within a period
of 8 weeks from the date of receipt of a copy of this order.

12.Both the appeals are allowed. No costs.

To

1.The Principal District and Session Judge of Kanyakumari District.

2.The Record Keeper,
Madurai Bench of Madras High Court, Madurai.

.

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