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

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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

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

endeavour of the appellant to bring into the fold of the pending

criminal case the parents of the respondent, brother and sister also.

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

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

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

(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.

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M.M. SUNDRESH,J.
AND
P.RAJAMANICKAM,J.

(ssm)

C.M.A. Nos. 2734 356 of 2017

22.03.2019

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