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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2019
CORAM:
THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
C.M.A. Nos. 2734 356 of 2017
Malathi …Appellant
in both CMA’s
Vs.
E.M.Ravisankar … Respondent
in both CMA’s
Prayer: Appeals filed under Section 19(1) of the Family Courts Act,
1984 against the fair and final order dated 04.10.2016 made in (i)
I.A.No.18 of 2012 in F.C.O.P.No. 33 of 2012; and (ii) F.C.O.P.No. 33 of
2012, on the file of the Family Court, Salem.
For Appellant : Mr.T.Murugamanickam,
(in both CMA’s) Senior Counsel for
M/s.Zeenath Begum
For Respondent : Mr.S.Parthasarathy,
(in both CMA’s) Senior Counsel for
Mr.N.Damodaran
http://www.judis.nic.in
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COMMON JUDGMENT
(Delivered by M.M.Sundresh,J.)
C.M.A.No.2734 of 2017 has been filed by the appellant/wife
being aggrieved over the order passed by the Family Court in
I.A.No.18 of 2012 in F.C.O.P.No.33 of 2012, whereby the
respondent/husband was directed to return the properties of the
appellant/wife, which were in his custody.
2. C.M.A.No.356 of 2017 has been filed by the appellant wife
being aggrieved over the order passed by the Family Court in
F.C.O.P.No.33 of 2012, granting decree of divorce in favour of the
respondent/husband on the ground of cruelty alone.
3. Before adverting to the submissions made by the learned
Senior Counsel for the parties, the background facts are required to be
analysed.
4. The marriage between the appellant and the respondent was
solemnized on 01.09.2004. A male child was born on 18.06.2005. The
respondent filed a petition for restitution of conjugal rights on the file
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of Sub-Court, Erode in HMOP No. 93 of 2008. This was ordered ex
parte on 23.08.2010. Thereafter, an application was filed by the
appellant to set aside the ex parte decree and the same was allowed
on 23.10.2012. In the mean while, the respondent filed a petition for
divorce on 21.12.2010. In view of the above, the respondent withdrew
the earlier petition filed seeking restitution of conjugal rights on
17.01.2013.
5. The order under appeal was challenged before this Court on
08.12.2016. An application filed in CMP No. 22733/2017 on
19.12.2017 seeking to raise a plea that the petition filed for divorce is
not maintainable as it has been filed only under Section 13(1)(ia) and
(ib) of the Hindu Marriage Act, and, therefore, not on the ground of
cruelty.
6. It is the case of the respondent that the appellant has been
continuously harassing him and his family members by way of cruelty.
She did not rejoin the respondent after giving birth to a male child.
Only under those circumstances, the petition was filed seeking
restitution of conjugal rights. Notwithstanding ex parte order passed,
the appellant was not willing to rejoin, but, for the reasons well known
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to her, filed a petition to set aside the same.
7. Few days after the filing of the aforesaid petition for
restitution of conjugal rights, the appellant gave a criminal complaint
for the offences under Section 498A and 406 IPC. In fact, it was the
endeavour of the appellant to bring into the fold of the pending
criminal case the parents of the respondent, brother and sister also.
Challenging the same, the respondent filed a petition under Section
482 of the Cr.P.C. This court directed the accused to file appropriate
application before the Family Court. Under those circumstances, the
respondent filed a petition before the Family Court, inter alia, alleging
mental cruelty and desertion, apart from invoking Section 13(1)(1-A)
of the Hindu Marriage Act for not re-joining even after an order was
passed for restitution of conjugal rights.
8. The appellant has contended before the Family Court raising
very many allegations. While denying the averments made in the
petition filed by the respondent, she has alleged that the respondent is
man of many vices. He is a gambler, drunkard and womanizer.
Allegations have been made against the mother-in-law to the effect
that she was trying to administer a local herb to abort the child. As
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against father-in-law, she has stated that he made wrong advances
against her to the knowledge of the mother-in-law.
9. The Family Court passed an order granting decree of divorce
on the ground of cruelty alone. After coming to the said conclusion,
the Family Court considered the allegations made by the appellant,
particularly with reference to the petition filed by him for restitution of
conjugal rights and a subsequent petition filed by her coupled with her
conduct. Incidentally, the Court below took into consideration all the
allegations made by the appellant as a whole. Accordingly, it was held
that the allegations, being serious in nature, were not proved and,
therefore, the same lends credence to the case of the respondent.
Thus, the petition was allowed insofar as the cruelty is concerned.
Challenging the same, the present appeals is before us.
10. Learned Senior Counsel appearing for the appellant would
contend that the petition itself is not maintainable since it has been
filed by invoking Section 13(1-A) of the Hindu Marriage Act. He
submitted that though such a contention has not been raised by the
appellant, particularly in the light of the pleadings made by the
appellant on the presumption that the petition is filed only for cruelty,
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the same being the clear question of law, can be raised for the first
time. That is the reason why the petition has been filed in CMP No.
22773 of 2017 though not raised along with the grounds of appeal at
the time of filing.
11. Learned Senior Counsel also submitted that once it is held
so, the petition filed for divorce based upon the decree obtained for
restitution of conjugal rights is not maintainable since one year has not
lapsed. Secondly, it is submitted that the Family Court has mis-
directed itself by wrongly placing the onus on the appellant. It is for
the respondent to substantiate his case with respect to the cruelty if
the contention raised already is rejected before this Court. In any
case, no person can take advantage on his own wrong. To buttress his
submission, learned Senior Counsel placed reliance upon the judgment
of this court in Anantha Padmanabhan @ Balu v. Sassicala reported in
(2008) 4 CTC 253.
12. Learned Senior Counsel appearing for the respondent would
submit that it is not correct to state that the petition has not been filed
for divorce on the ground of cruelty. It is only a typographical
mistake. A petition has to be seen as a whole. The cause of action is
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to be seen from a plain reading of the entire petition. The cause of
action is nothing but a bundle of facts which if answered would result
in getting the final position in favour of the petitioner (respondent
herein).
13. He further submitted that the Family Court took into
consideration all the allegations made by the respondent vis-a-vis the
one raised by the appellant. Therefore, the order for divorce was
granted on the ground of cruelty, by taking note of the fact that the
respondent has proved his case and the appellant has not
substantiated the baseless allegations made by her. Thus, no
interference is required especially when the Court of first instance
considered the entire material available on record by a speaking and
exhaustive order.
14. On the first submission made, we find that a specific plea has
been raised by the respondent alleging cruelty on the part of the
appellant. The pleadings are to be read as a whole. As rightly
submitted by the learned Senior Counsel appearing for the respondent,
the cause of action is nothing but a bundle of facts. If proved, it would
only lead a party to get the relief. Admittedly, in the case on hand,
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the parties have clearly understood each others case. That is the
reason why the appellant has countered the allegations with respect to
cruelty, while raising herein allegations placing cruelty on the part of
the respondent. In such view of the matter, we are of the view that
the contentions raised by the learned Senior Counsel for the appellant
cannot be countenanced. Perhaps that is the reason why the appellant
consciously did not raise this plea before the Family Court and also
while filing the appeal before this Court. This plea has also been raised
for the first time by way of filing a petition before this Court. There is
an element of wisdom behind the Legislature in not allowing the
counsel to appear before the Family Court, the proceeding ought to be
taken as summary in nature and, therefore, strict rules of pleadings
are not required to be gone into, especially when the personal rights of
the parties are involved.
15. Therefore, looking from any angle we are not in a position
to agree with the submissions made by the learned Senior Counsel
appearing for the appellant with respect to the maintainability of the
petition, especially when the appellant has subjected herself to the
jurisdiction of the Court and then made all her submissions, produced
materials and let in evidence with respect to cruelty as alleged.
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16. After all we have to see the substance as against the
procedural law. Moreover, a wrong quoting of a provision by itself
cannot be a ground to decline the relief when parties have understood
each other’s case in clear terms.
17. On the other issues raised by the learned Senior Counsel
also we do not find any merit. In the case on hand, the respondent
showed his bonafides by filing a petition for restitution of conjugal
rights, it is the appellant who filed a petition to set aside the same. As
observed by us, what is important is her intention to rejoin as against
the allegations and counter allegations. Suffice it to state that she was
not inclined to rejoin with the respondent at that point of time.
18. Secondly, immediately after the respondent filed the petition
for restitution of conjugal right, the appellant filed a complaint before
the jurisdictional police. She did not stop with that. She was trying to
implicate her in-laws also in the said complaint. The Family Court
taking into consideration all these factors, while coming to the
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conclusion that the materials available on record, including the
pleadings, are necessarily to be seen, further held that for proving the
allegations of cruelty, certainly the conduct, behaviour and attitude of
the appellant also will have to be seen as a factor. The allegations
made by her are necessarily to be taken note of. When a party makes
an allegation, it is for the party to substantiate to the satisfaction of
the Court. In this case on hand, the appellant has made strong
allegations against the respondent, his parents and others.
19. Insofar as the respondent is concerned, she has made an
allegation that he is a womanizer, drunkard and gambler. These
factors can be taken into account at least for holding that she is not
ready and willing to rejoin with the respondent. Though the Court
below declined to pass an order on the ground of desertion, these
factors would be sufficient enough to hold as to how the appellant has
thought about the respondent and her in-laws. It may be her
perception, but this may lead to the conduct as well. It is the specific
case of the appellant that her mother-in-law under the guise of giving
her some herbs, proposed to terminate her pregnancy. However, the
Court below found no material to substantiate it. Secondly, her
allegation that father-in-law has made advances is also not supported
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by any evidence. Therefore, we do not find anything wrong on the part
of the Family Court in taking into consideration all these factors along
with the other averments made by the respondent which were found
to be proved.
20. In such view of the matter, we are of the view that the order
passed by the Family Court in F.C.O.P.No.33 of 2012 does not warrant
any interference, and the same is confirmed by dismissing
C.M.A.No.356 of 2017.
21. Insofar as the appeal in C.M.A.No.2734 of 2017 which has
been filed against the order passed in I.A.No.18 of 2012 in F.C.O.P.No.
33 of 2012 is concerned, the Family Court has merely directed the
respondent/husband to return the articles listed out by the
appellant/wife, which are not disputed, to her. In fact, it is the stand of
the respondent that the said articles have been returned to the
appellant/wife. Even qua return of articles, we do not find anything
wrong in the conclusion arrived at by the Family Court.
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For the foregoing reasons, the appeals are dismissed. No costs.
Consequently, connected CMP Nos. 2550 22733 of 2017 are closed.
(M.M.S.,J.) (P.R.M.,J.)
22.03.2019
Index : Yes/No
ssm
To:-
The Judge,
Family Court,
Salem.
http://www.judis.nic.in
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M.M. SUNDRESH,J.
AND
P.RAJAMANICKAM,J.
(ssm)
C.M.A. Nos. 2734 356 of 2017
22.03.2019
http://www.judis.nic.in