IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.03.2018
THE HONOURABLE MR.JUSTICE A.SELVAM
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
C.M.A.No.3251 of 2017
and C.M.P.No.20277 of 2017
V.Swathi … Appellant / Petitioner
G.Divakar … Respondent / Respondent
Prayer : Civil Miscellaneous Appeal filed under Section 19 (1) of Family Courts Act, 1984, to set aside the Judgment and Decree, dated 24.10.2017 in F.C.O.P.No.210 of 2016 on the file of the Family Court, Vellore and consequently allow the said F.C.O.P.No.210 of 2016.
For Appellant : Mr.C.P.Sivamohan
For Respondent : Mr.R.Gopinath
(Judgement of the Court was delivered by P.KALAIYARASAN, J)
This Civil Miscellaneous Appeal has been filed against the order of the Family Court, Vellore, dated 24.10.2017 in F.C.O.P.No.210 of 2016, dismissing the petition for divorce filed on the ground of cruelty by the wife and granting the counter claim of the husband for restitution of conjugal rights, by the wife as appellant.
2. The averments of the wife in the petition and reply statement are as follows :
The marriage was solemnized between the spouses on 12.03.2015 as per Hindu Rites and Customs. Since the mother of the respondent has been working as teacher, maternal aunt with their children has been residing and looking after the respondent and his family from his age of 15. The respondent joining with his maternal aunt behaved with the petitioner in arrogant manner and he harassed physically and put her in total mental torture. She was treated as slave and as housemaid and they insisted the petitioner to resign her job who is working in Oriental Insurance Company at Vellore. The family members of the respondent used filthy language and behaved indifferently and isolated the petitioner in a threatening nature. The respondent forced the petitioner to desert him. The respondent came to the petitioner’s office and residence once in three months and put the family members including the petitioner in total fear and she apprehends to live with the respondent. A lawyer notice was issued on 01.09.2016, for which the respondent sent reply notice on 10.09.2016 with false allegations.
3. The averments of the respondent in his counter is as follows :
(i) The marriage is admitted. The other allegations are denied. After the marriage, within a month the respondent’s father died due to ill health. As a dutiful wife, the petitioner discharged all the final ritual ceremony of her father-in-law. After the demise of the respondent’s father, the petitioner’s parents brain washed the petitioner and forced her to take away all the valuables from the matrimonial home. Though the petitioner agreed to get transfer from Vellore to Chennai before marriage she has not taken any steps. The petitioner has also not accepted the suggestion to resign her job and live with the respondent in Chennai. After the demise of the respondent’s father, there was change in the petitioner’s attitude. Though the petitioner and his parents agreed in the panchayat convened by them either to set up a separate family at Vellore or give consent divorce, they failed to keep their words. The respondent is also ready for consent divorce on the ground of misunderstanding between the spouses. But the petitioner and his parents did not accept the same and they insisted to give consent for divorce on the fact that the respondent, his family members gave mental and physical harassment to the petitioner.
(ii) The petitioner issued legal notice with false and frivolous allegations and the respondent sent suitable reply. The petitioner has withdrawn from the society of the respondent without any reasonable cause. The respondent neither deserted nor treated the petitioner in cruel manner at any point of time. The respondent prays to dismiss the petition and grant alternative relief of restitution of conjugal rights. He has also paid the Court fee for the counter claim.
4. The petitioner examined herself as P.W.1 and 6 Exhibits were marked on her side. On the side of the respondent, two witnesses were examined and 4 Exhibits marked. Through R.W.2, 5 Exhibits, Ex.X.1 to Ex.X.5 were also marked.
5. The learned trial judge after analysing the evidence of both sides, dismissed the petition for divorce and granted restitution of conjugal rights as prayed for by the respondent. Aggrieved by the same, the appellant / wife has preferred this Civil Miscellaneous Appeal.
6. The learned counsel appearing for the appellant contends to the effect that the respondent and his relatives gave trouble to the appellant and she was constrained to dance according to their tunes and she was treated as slave and unpaid housemaid; that the respondent and his family members were insisting the appellant to resign her job; that she was always under constant threat apprehending danger to her life and therefore the appellant was forced to leave the matrimonial home and the appellant was ready to give divorce by mutual consent in the interest of both and therefore the order of the trial Court is liable to be set aside. It is further contended that in the absence of separate petition for restitution of conjugal rights and without framing the issue for the same, the trial Court is not correct in granting the relief of restitution of conjugal rights to the respondent.
7. The learned counsel appearing for the respondent inter alia argued that the appellant / petitioner has not established the allegation of cruelty warranting divorce and the trial Court after analysing the evidence of both sides has rightly dismissed the O.P for divorce and granted restitution of conjugal rights as prayed for by the respondent and the same does not require any interference by this Court.
8. The marriage between the spouses on 12.03.2015 is admitted. The fact also remains that the father of the respondent passed away within one month from the date of marriage and immediately after the demise, the petitioner left the matrimonial home and since then she has been residing with her parents. During her stay in her parents home, the respondent used to visit in the week ends and stayed their.
9. The main contention of the appellant / petitioner is that the respondent and his family members have been treating her cruelly and they compelled her to resign her job. She herself admits in her evidence that she agreed to get transfer to Chennai from Vellore so as to live with the respondent in Chennai and she has not pressed the application for transfer she already gave in the office. The respondent in his evidence says that though she agreed to get transfer, she has not taken steps for the same and when he suggested to resign, she refused the same. There is no acceptable evidence to show that the appellant / petitioner was compelled by the respondent or his family members to resign her job.
10. When the appellant / petitioner stayed in the matrimonial home for a short period from the date of marriage, the contention that the respondent and her family members treated her cruelly just like a slave cannot be accepted. For such cruelty, there is no acceptable evidence. Therefore the trial Court has rightly rejected the contention of the petitioner as there is no such cruelty as to cause a reasonable apprehension in the appellant’s mind that it would be harmful or injurious for her to live with the respondent.
11. When the respondent himself took conflicting stands in one place saying that he is willing for consent divorce and in another place praying for restitution of conjugal rights, the trial Court is not correct in granting the relief of restitution of conjugal rights as prayed for by the respondent.
12. The marriage was held on 12.03.2015. The petition for divorce in F.C.O.P.No.210 of 2016 was filed on 20.09.2016. The respondent in his counter says that he is willing for consent divorce. The appellant / petitioner in para III C (vi) of the grounds of appeal says that she is ready to give divorce by mutual consent in the interest of both.
13. Considering the date of marriage, date of filing of divorce petition, date of separation of the spouses and the consent for mutual divorce given by both the parties after taking much time for reflection, this Court is of the considered view that the marriage can be dissolved under Section 13 (B) of the Hindu Marriage Act by mutual consent, though not on the ground of cruelty under Section 13 (1) (ia) of the Hindu Marriage Act.
14. For the aforesaid reasons, the order of the trial Court is liable to be set aside and divorce be granted under Section 13 (B) of the Hindu Marriage Act.
In the result, this Civil Miscellaneous Appeal is allowed and the order of the trial Court in F.C.O.P.No.210 of 2016, dated 24.10.2017 is set aside. The marriage held between the appellant and the respondent on 12.03.2015 is dissolved under Section 13 (B) of the Hindu Marriage Act, 1955, though not under Section 13 (1) (ia). Consequently, connected miscellaneous petition is closed. No costs.
(A.S., J.) (P.K., J.)
Index : Yes
The Family Court,
C.M.A.No.3251 of 2017