1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.S.A(MD)Nos.34 and 35 of 2011 and MP(MD)No.2 of 2011 M.Senthilkumaravel .. Appellant/Appellant in both CMSAs. Vs. Manjula Rani .. Respondent/Respondent in both CMSAs. Prayer : Civil Miscellaneous Second Appeals filed under Section 28 of Hindu Marriage Act r/w section 100 of CPC against the orders dated 30.10.2010 passed in HMCMA Nos.8 and 7 of 2009 by the Additional District Court (Fast Track Court) Virudhunagar confirming the orders dated 05.06.2009 passed in HMOP Nos.63 and 71 of 2007 by the Sub Court, Virudhunagar. For Appellant : Mr.T.Srinivasa Raghavan for Mr.M.Karthikeya Venkatachalapaty (both CMSAs.) For Respondent : Ms.J.Anandavalli (both CMSAs.) COMMON JUDGMENT The concurrent orders passed in HMOP Nos.63 and 71 of 2007 by the Sub Court, Virudhunagar and in HMCMA Nos.8 and 7 of 2009 by the Additional District Court (Fast Track Court) Virudhunagar are being challenged in the present Civil Miscellaneous Second Appeal. 2. The appellant in both the appeals as petitioner has filed HMOP No.63 of 2007 on the file of the trial Court under sections 13(1)(i-a)(i- b) of the Hindu Marriage Act, 1955 praying to dissolve the marriage performed in between him and respondent. Likewise, the respondent in both the appeals as petitioner has filed HMOP No.71 of 2007 under section 9 of the said Act for restitution of conjugal rights. 3. The trial Court has dismissed HMOP No.63 of 2007 and allowed HMOP No.71 of 2007. Against the order passed in HMOP No.63 of 2007 HMCMA No.8 of 2009 has been filed and against the order passed in HMOP No.71 of 2007 HMCMA No.7 of 2009 has been filed on the file of the first appellate Court. 4. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed both HMCMAs. Against the concurrent orders, these Civil Miscellaneous Second Appeals https://hcservices.ecourts.gov.in/hcservices/ 2 have been preferred by the petitioner in HMOP No.63 of 2007 and respondent in HMOP No.71 of 2007 as appellant. 5. The material averments made in the petition filed in HMOP No.63 of 2007 are that the petitioner has married the respondent as per their Caste Customs and Hindu Rites on 20.08.2004. At the time of marriage the petitioner has served as System Engineer in Switzerland. After marriage both the petitioner and respondent have led their marital life for a period of three days. The respondent has been forced to live with her parents. The petitioner has taken a house for rent in Chennai. During June 2005, on the eve of Thai Pongal, the respondent has been taken to her parents house and since then the respondent has been living in the house of her parents and refused to live with the petitioner. On 01.03.2005 a panchayat has been convened. The respondent has openly stated that she is willing for divorce and subsequently both of them have lived 1½ months at Chennai and the respondent has given birth a male child on 31.07.2005. The petitioner and his parents have performed necessary things in view of birth of male child. During November 2005 the petitioner has gone to London. After three weeks he returned. The parents of the respondent have refused to send her to marital abode. During July 2006 one Subbulakshmi asked the respondent to come and live with the petitioner and the respondent has refused. During September 2006 also an attempt has been made. But the same has been turned down. The respondent has been living separately by way of deserting the petitioner without sufficient cause. Since the respondent has refused to live with the petitioner, the respondent has caused cruelty to him. The petitioner has already filed HMOP No.78 of 2006 for restitution of conjugal rights and the same has been subsequently not pressed. Since the respondent has deserved the petitioner and also caused cruelty to him, the present petition has been filed for getting divorce. 6. On the side of the respondent a detailed counter has been filed, wherein the factum of marriage as well as birth of male child have been admitted and the allegations made against her have been denied. 7. In the petition filed in HMOP No.71 of 2007 it is averred that the respondent has married the petitioner on 20.08.2004 as per their Caste Customs and Hindu Rites. On 14.07.2005 the petitioner has left marital abode to her parents house. On 31.07.2005 the petitioner has begotten a male child. In the meanwhile, the respondent has gone abroad and even after returning from abroad he has not taken any steps to take back the petitioner. But he filed HMOP No.78 of 2006 for restitution of conjugal rights, wherein the petitioner has filed a memo stating her intention to live with him and subsequently the same has been not pressed. The petitioner is always ready to live with the respondent. Under the said circumstances, the present petition has been filed. 8. On the side of the respondent a detailed counter has been filed, wherein all the allegations made against him are denied and further several allegations have been made against the petitioner. 9. As stated supra the trial Court after evaluating the evidence available on record has dismissed HMOP No.63 of 2007 and allowed HMOP No.71 of 2007. The first appellate Court has also accepted the orders passed by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 3 10. On the side of the appellant in both Civil Miscellaneous Second Appeals, the following substantial questions of law have been raised for consideration: (a) Whether the Courts below are perverse in dismissed the petition for divorce even after the proving of a wanton harassment, one after other and completely abandoning the appellant by the respondent is not enough to call it cruelty? (b) Whether the Courts below are perverse in dismissed the petition for divorce filed by the appellant and allowed the petition for restitution of conjugal rights filed by the respondent without consider that the marriage has broken down irretrievably and the same also proved by way of oral and material evidence? (c) Whether the Courts below erred in law by dismissing the petition for divorce without considered the evidence regarding the cruelty of the respondent and the same cannot be reasonably be expected the appellant/petitioner to live with the respondent? (d) Whether the Courts below are right in dismissing the petition for divorce while failed to consider that there has been no restitution of conjugal rights as between the parties to marriage for a long period after passed a decree for restitution of conjugal rights? (e) Whether the Courts below erred in consider the evidence placed before the Court by the appellant /petitioner and though proved the unwillingness of the respondent to join together with the appellant even after the coercive steps taken by him and the Courts below whether, without considered that the marriage being irretrievably broken down perversely passing decree for dismissal of the petition for divorce and allowed the petition for restitution of conjugal rights? 11. Apart from the substantial questions of law raised on the side of the appellant, the Court has to look into the following aspects: (a) Whether the respondent in HMOP No.63 of 2007 has deserted the petitioner and thereby caused cruelty and under the said circumstances, an order of divorce can be passed? (b) Whether the petitioner in HMOP No.71 of 2007 is entitled to get an order of restitution of conjugal rights? 12. The learned counsel appearing for the appellant in both the Civil Miscellaneous Second Appeals has strenuously contended that from January 2005 the respondent has wilfully deserted the petitioner and the petitioner has made several efforts so as to bring her marital home and all his attempts have become futile and in order to establish the wilful refusal on the part of the respondent, enormous evidence has been let in and the petitioner has already filed HMOP No.78 of 2006 for restitution on conjugal rights, wherein the respondent has filed a memo stating that she is ready and willing to live with the petitioner and subsequent the same has been not pressed and thereafter the respondent has failed to https://hcservices.ecourts.gov.in/hcservices/ 4 live with the petitioner and further at the instigation of the respondent and her parents a criminal case has been instituted against the petitioner and he got anticipatory bail. Under the said circumstances, the Court can very well come to a conclusion that the respondent has wilfully deserted the petitioner without having sufficient reason and thereby caused cruelty and the Courts below without considering the efforts taken by the petitioner have erroneously refused to accept the contention put forth on his side and therefore, the concurrent orders passed by the Courts below are liable to be interfered with. 13. The learned counsel appearing for the respondent in both the Civil Miscellaneous Second Appeals has laconically contended that even though in the petition filed in HMOP No.63 of 2007 several allegations have been made against the respondent and particularly that from January 2005 the respondent has left matrimonial abode without genuine reason, the petitioner in HMOP No.63 of 2007 has given evidence otherwise and the Courts below after considering the evidence given by him have rightly rejected his contention and there is no acceptable and trustworthy evidence so as to prove the alleged desertion as well as cruelty and therefore, the concurrent orders passed by the Courts below are not liable to be interfered with. 14. The petition in HMOP No.63 of 2007 has been filed under two grounds namely, desertion and cruelty. For the purpose of proving the allegations made against the respondent therein, on the side of the petitioner in HMOP No.63 of 2007 PWs.1 to 4 have been examined. The witnesses examined on the side of the petitioner have deposed to the effect that so many attempts have been made so as to bring the respondent to matrimonial abode and all the attempts have become failed. 15. In paragraph-8 of the petition filed in HMOP No.63 of 2007 it has been specifically stated that during January 2005 the parents of the respondent have taken her to their house on the eve of Thai Pongal and subsequently the respondent has firmly refused to come her marital abode. 16. It is an admitted fact that the respondent has given birth to a male child on 31.07.2005. The petitioner has been examined as PW1 in HMOP No.63 of 2007. During the course of cross examination, he deposed that his wife and her relatives have not instigated Advocate and his Clerk to attack him. The alleged incident has unexpectedly happened. Further he deposed in his evidence that on 14.07.2005 he sent the respondent to her parental house in connection with delivery and he has given send-off in Egmore Railway Station. On 31.07.2005 the respondent has given birth to a male child. On 07.09.2005 the members of both houses have participated in the naming ceremony of his son. On 01.11.2005 he celebrated second Diwali at Vadipatti. Further he deposed that he attended funeral ceremony of paternal grandfather of the respondent. 17. From the clear evidence given by the petitioner, the Court can easily come to a conclusion that the petitioner has used to make his visit to the parents house of the respondent in connection with so many matters. But in the petition it has been specifically averred that from January 2005 the respondent has deserted the petitioner. Therefore, from the evidence of the petitioner the Court can easily discern that the alleged desertion made by the respondent cannot be believed in. https://hcservices.ecourts.gov.in/hcservices/ 5 18. It is an admitted fact that the petitioner in HMOP No.63 of 2007 has already filed HMOP No.78 of 2006 for restitution of conjugal rights, wherein the respondent has filed a memo stating her intention to live with the petitioner and subsequently the same has been not pressed. Therefore, it goes without saying that the respondent is always willing to live with the petitioner. Since the alleged desertion and also cruelty mentioned in HMOP No.63 of 2007 have not at all been established, the Court cannot allow the petition filed in HMOP No.63 of 2007. Of course, it is true that apart from the evidence given by the petitioner, PWs.2 to 4 have been examined and all of them are related to the petitioner. Since the petitioner has given clear evidence to the effect that he celebrated second Diwali in the parents house of the respondent, the evidence given by PWs.2 to 4 cannot be accepted and further from the evidence given by the petitioner as well as by the respondent, the Court can very well come to a conclusion that the difference between the petitioner and respondent is nothing but nugae and the same is not at all a sufficient ground for granting divorce. 19. The petitioner in HMOP No.71 of 2007 has filed the same for restitution of conjugal rights, wherein she expressed her ever willingness to live with the respondent therein. 20. The Courts below after analysing the available evidence on record have rightly rejected the contention put forth in HMOP No.63 of 2007. In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the appellant in both Civil Miscellaneous Second Appeals and further the substantial questions of law raised on the side of the appellant in both Civil Miscellaneous Second Appeals are not at all relevant for the purpose of deciding the real dispute that exists between the parties and altogether these Civil Miscellaneous Second Appeals deserve to be dismissed. 21. In fine, these Civil Miscellaneous Second Appeals are dismissed without cost and the concurrent orders passed by the Courts below are confirmed. Connected Miscellaneous Petition is also dismissed. sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar (C.S) To 1.The Additional District Judge, (Fast Track Court) Virudhunagar 2.The Subordinate Judge, Virudhunagar +2 cc's to Mr.M.Karthikeya Venkitachalapathy, Advocate, SR Nos.25150,25151 Judgment in C.M.S.A(MD)Nos.34 & 35 of 2011 28.07.2011 mj RJ/16.8.11 5p/5c https://hcservices.ecourts.gov.in/hcservices/