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2019 Supreme(Mad) 1061
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, V. BHAVANI SUBBAROYAN, JJ.
T. Kullayappa - Appellant
Versus
T. Lakshmi Devi - Respondent
CMA Nos. 2362 & 2363 of 2019
Decided On : 20-06-2019
For the Appellant :M. Chidambaram, Advocate.
For the Respondent:G. Bala & Daisy, Advocate.
Headnote:
Family Courts Act – Section 19 - Hindu Marriage Act – Section 13(1) - Seeking restitution of conjugal rights - Present appeals are that respondent herein, who is none other than wife of appellant after 43 years of marital life with appellant herein, had filed before Principal Family Court for a decree of divorce on ground of cruelty and blames that they got married and due to their wedlock, a female child was born and said daughter was married to one who had jointly purchased a property, where appellant and respondent are residing and constructed a residential building having ground and first floor, in which appellant/husband and the respondent/wife are residing in first floor rear portion and daughter and son-in-law along with their 17 years old grand-daughter are residing in front portion of building - When O.P filed by respondent/wife was pending, appellant/husband had filed O.P, before Family Court, under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights on the ground that respondent herein and his daughter have completely deserted appellant and appellant is not in good health and he was almost 71 years old when he filed restitution of conjugal rights petition – Held, While handling Family Court issues, Family Court should always keep in mind age of parties, who are approaching Family Court - Mere statements made in petition filed by parties are not sufficient to dissolve marriage, without there being any materials on record - As far as present case on hand is concerned, it is very unfortunate that a husband and wife, who had spent their life together for more than 45 years, are before this Court - Family Court ought to have seen the plight of 75 years old man, who without being supported by his own wife and only daughter, who are family members, that too, when the husband pleads to the Court that he had spent all his earnings towards the purchase of the plot in which his wife and daughter, along with his son-in-law and grand-daughter are living and he has been thrown out of the house - Nothing prevented the daughter, who stays with her mother, respondent herein, to depose in favour of her mother, had allegations of respondent wife is true - In fact, this fact has also not been taken care or taken into consideration by Principal Judge, Family Court, while considering case of wife and allowing petition filed for dissolving the marriage - Under these circumstances, court are of the view that judgment and decree passed by Principal Family Court Judge need to be interfered - Accordingly, both Civil Miscellaneous Appeals are allowed , filed for dissolution of marriage is dismissed and O.P.No.5 filed for restitution of conjugal rights is allowed – Appeal allowed.
(Prayer: Civil Miscellaneous Appeals have been filed under Section 19 of the Family Court's Act against the common fair and decreetal orders dated 19.02.2018 passed in O.P.Nos.3061 of 2012 and 5 of 2014 by the Principal Judge, Principal Family Court, Chennai.)
1. The above two Civil Miscellaneous Appeals filed under Section 19 of Family Court's Act are arising out of a common judgment and decree dated 09.02.2018 made in O.P.Ns.3061 of 2012 and O.P.No. 5 of 2014 respectively.
2. The brief facts leading to the present appeals are that the respondent herein, who is none other than the wife of the appellant herein, after 43 years of marital life with the appellant herein, had filed O.P.No.3061 of 2012 before the Principal Family Court at Chennai for a decree of divorce on the ground of cruelty under Section 13(1) of Hindu Marriage Act and blames that they got married on 05.06.1969 and due to their wedlock, a female child named Hemalatha was born on 31.10.1970 and the said daughter Hemalatha was married to one L. Ramalingam, who had jointly purchased a property, where the appellant and the respondent are residing and constructed a residential building having ground and first floor, in which the appellant/husband and the respondent/wife are residing in the first floor rear portion and the daughter and son-in-law along with their 17 years old grand-daughter are residing in the front portion of the building.
3. Whileso, when O.P.No.3061 of 2012 filed by the respondent/wife was pending, the appellant/husband had filed O.P.No.5 of 2014, before the Family Court, under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights on the ground that the respondent herein and his daughter have completely deserted the appellant and the appellant is not in good health and he was almost 71 years old when he filed restitution of conjugal rights petition.
4. The Principal Judge, Family Court at Chennai, by a common judgment and decree, dated 19.02.2018, allowed O.P.No.3061 of 2012 by dissolving the marriage solemnized on 05.06.1969 and granted a decree of divorce on the ground of cruelty and dismissed O.P.No.5 of 2014 filed by the appellant/ husband for restitution of conjugal rights. As against the order of divorce granted in O.P.No.3061 of 2012, CMA.No.2362 of 2019 is filed and as against the dismissal of O.P.No.5 of 2014, CMA.No.2363 of 2019 is filed.
5. Heard Mr. M. Chidambaram, learned counsel appearing for the appellant/husband and Mrs. Bala & Daisy, learned counsel appearing for the respondent/wife and perused the materials available on record.
6. The learned counsel appearing for the appellant/ husband would submit that while allowing the divorce O.P. filed by the respondent/wife, the Family Court failed to consider that the burden of proof is on the respondent/wife to prove the alleged cruelty by the appellant/husband and the wife is merely making statement of allegation of cruelty and failed to prove the alleged cruelty as stated in her petition. The learned counsel has also pointed out to the Court that the appellant and the respondent having lived together from 1969 to 2012 ie., almost 45 years, but the respondent/wife had chosen to file divorce O.P. only in the year 2012, that too, when the respondent/wife was almost 60 years and the appellant/husband was 71 years old. The age factor of the appellant as well as respondent was not considered by the Family Court while granting divorce and while dismissing the petition for restitution of conjugal rights.
7. On the other hand, the respondent's counsel Mrs. Bala & Daisy vehemently contended that the appellant/husband throughout his life time, after the marriage with the respondent/wife has committed various kinds of torture especially for almost 45 years, the respondent/wife was manhandled by the appellant/husband. The wife tolerated the husband's behaviour for almost 45 years only for the reason that their daughter's life should not be spoiled, as she being the only daughter sh
