BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation : 02.07.2018
Date of Judgment : 09.07.2018
Dated: 09.07.2018
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
and
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)Nos.319 of 2015 and 320 of 2015
and
MP(MD)Nos.1 and 1 of 2015
1.CMA(MD)No.319 of 2016:-
Thangam : Appellant /Respondent
Vs.
M.Rajesh : Respondent/Petitioner
PRAYER:- Civil Miscellaneous Appeal filed under Section19 of the Family
Courts Act, against the common judgment and decree passed in HMOP No.174 of
2014, dated 12.02.2015 on the file of the Family Court, Tirunelveli.
1.CMA(MD)No.320 of 2016:-
Thangam : Appellant /Respondent
Vs.
M.Rajesh : Respondent/Petitioner
PRAYER:- Civil Miscellaneous Appeal filed under Section 19 of the
Family Courts Act, against the common judgment and decree passed in HMOP
No.373 of 2014, dated 12.02.2015 on the file of the Family Court,
Tirunelveli.
!For Appellant : Mr.R.Pon Karthikeyan
^For Respondent : Mr.K.Samidurai
:COMMON JUDGMENT
(Judgment of the court was delivered by T.KRISHNAVALLI,J)
These Civil Miscellaneous Appeals arise out of the common order passed
in HMOP Nos.174 and 373 of 2014, dated 12.02.2015 on the file of the Family
Court, Tirunelveli.
2.The un-controverted facts are that the marriage between the
petitioner/wife and the respondent/husband was solemnised on 19.11.2009; out
of the lawful wedlock, they were blessed with a male child on 02.02.2011 and
that the petitioner was sent to her parental home by the respondent for
delivery and after delivery of the child, the respondent failed to see her
and her child and he completed neglected her. Thereafter, the respondent
filed a divorce petition at Andhra Pradesh and for that, the petitioner filed
a transfer petition before the Hon’ble Supreme Court of India and the same
was transferred to the file of the Sub Court, Tirunelveli and again made over
to the file of the Family Court, Tirunelveli, in HMOP No.174 of 2014. The
petitioner also filed a petition seeking restitution of conjugal rights and
the same was subsequently made over to the file of the Family Court,
Tiruneveli, in HMOP No.373 of 2014. The above two HMOPs were tried together
and by a common judgment, dated 12.02.2015, the learned Family Court,
Tirunelveli, allowed the HMOP No.174 of 2014 filed by the respondent/husband
seeking divorce and dismissed the petition in HMOP No.373 of 2014 seeking
restitution of conjugal rights. Aggrieved over the common judgment the
present civil miscellaneous appeals have been filed by the wife.
3.The learned counsel for the appellant/wife submitted that the trial
court has committed error in granting the decree of divorce, when the
respondent/husband failed to prove the alleged desertion and cruelty by the
wife and erroneously dismissed the petition seeking restitution of conjugal
rights and that the trial court has ignored the fact that the respondent did
not evince any interest to bring his wife and child to his house, whereas the
wife had tried her level best to communicate her husband and she was
clamoring for the matrimonial home and that the trial court has granted the
decree of divorce on the ground that the wife has filed the petition seeking
restitution of conjugal rights after three years, which is not maintainable
in law and that the trial court has failed to see that she never left the
matrimonial home on her own, but she was sent to her parental house only by
the husband for delivering the child and the husband also admitted during the
cross examination that he only took her to the railway station and sent her
for delivery and the trial court has not considered the welfare of the minor
child before granting the relief of divorce and that the trial court has
committed a grave error in shifting the entire responsibility and burden on
the wife to prove the case of the husband. In view of the above facts, the
common order passed by the trial court has to be set aside and the appeals
are to be allowed.
4.The learned counsel for the petitioner has relied upon the decision
reported in (2010)3 MLJ 91 (R.Sudha Vs. V.Senthil) by contending that the
approach of the trial court in granting divorce is totally unacceptable and
erroneous and the trial court cannot inject or infuse its own personal views
in to judgment and mere trivial irritations, quarrels, normal wear and tear
of married life would not amount to mental cruelty and the trial court
completely mis-directed itself by granting decree for divorce.
5.Per contra, the learned counsel for the respondent/husband submitted
that the appellant/wife chose to convey her resolve not to beget children
from the wedlock and after joining at matrimonial home, the appellant/wife
started to harass the respondent and his elders and did not behave properly
with the respondent when he used to come back regularly after his office
duties and that the elder members of the respondent advised her to behave
properly and after delivery of a male baby on 02.02.2011, the appellant/wife
has not returned to the matrimonial home and that neither the appellant/wife,
nor her parents have invited either the respondent or his family members for
commensuration of religious functions associated due to born of the child,
which clearly indicates that the appellant/wife has no interest to re-join
the respondent and that the trial court, considering all these aspects, has
granted decree of divorce and dismissed the petition filed by the wife for
restitution of conjugal rights. Hence, prays that these appeals are to be
dismissed.
6.Heard Mr.R.Pon Karthikeyan, learned counsel appearing for the
petitioner and Mr.K.Samidurai, learned counsel appearing for the respondent
and perused the materials available on record.
7.The appellant in CMA(MD)Nos.319 and 320 of 2015 is the wife and the
respondent is the husband. It is admitted on both sides that the marriage
between the appellant and the respondent solemnised on 13.11.1999 and due to
the wedlock, a son was born.
8.The order passed by the trial court in HMOP No.174 of 2014 for
divorce and HMOP No.373 of 2014 filed for restitution of conjugal rights by
the wife had carefully perused. The husband filed petition for divorce on
desertion and cruelty. Nowhere in the order, it was stated that the wife
voluntarily went to her parental house without any sufficient reasons.
9.Further, the learned trial Judge has not stated whether there was any
continuous desertion by the wife. The respondent himself admitted during his
cross examination that he only sent his wife to her parental house for
delivery. There was no discussion in the order of the trial court to the
effect that the respondent/husband has taken any steps to take back his wife
and new born baby from the parental house of the wife after delivery. No
reasons have been stated by the trial court, how the trial court came to the
conclusion that there was continuous desertion on the part of the wife. In
the matrimonial case, desertion must be voluntary without any valid reasons.
All desertions would not amount to cruelty. In this case, no document was
filed on the side of the respondent/husband to show that after the delivery,
he has taken steps to took back his wife.
10.Further, the trial court stated that three years after desertion the
appellant/wife filed the petition for conjugal rights show her continuos
desertion from her husband and she has no intention to reunion and hence, the
divorce was granted to the husband. It was not stated in the order that
after delivery of the new born baby, whether the respondent/husband has taken
any steps to take back his wife and son. No sufficient reasons were given by
the trial court for granting divorce and dismissing the restitution of
conjugal rights by the wife. There was no proper discussion in the order in
respect of granting of divorce. Delay in filing the conjugal rights by the
wife does not amount to valid desertion and cruelty. Hence, it is necessary
to interfere in the findings of the trial court.
11.In the result, both the appeals are allowed. The impugned common
order, dated 12.02.2015 made in HMOP Nos.174 and 373 of 2014 passed by the
Family Court, Tirunelveli, is set aside and the matter is remanded back to
the Family Court, Tirunelveli to reconsider the case afresh, after perusing
the oral and documents evidence and to pass a detailed order as expeditiously
as possible, not later than six months from the date of receipt of a copy of
this order. No costs. Consequently, connected Miscellaneous Petitions are
closed.
.
