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2019 Supreme(Mad) 1570
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, C. SARAVANAN, JJ.
N. Ponni & Others – Appellants
Versus
N. Karthiraj – Respondent
C.M.A.(MD) Nos. 1465 & 1466 of 2016 & C.M.P.(MD) No. 12251 of 2016, 11140 & 11141 of 2018 & Crl.R.C.(MD) No. 851 of 2016
Decided On : 22-02-2019
For the Appellant :S. Gokul Raj, Advocate.
For the Respondent:V. Sakthivel, Advocate.
Headnote:
Hindu Marriage Act, 1955 - Section 13 - employment in Coimbatore for good - acute mental pain – Jurisdiction - divorce - It is the respondents case that the appellants uncle apparently threatened to ruin the respondents career and to see that the members of respondents family were also framed up for harassing the appellant and that the appellant apparently told that her family had given 80 sovereign at the time of marriage instead of 60 sovereign in presence of elders of the family when attempt was made bring peace between the estranged couple ie. appellant and the respondent – Held, Ease with which the respondent would have re-adjusted in his parents house after marriage and same could not be expected from the appellant as frequent spatial change and dislocation would have disturbed the bond that was developing between them. If at all, it was the respondent who was cruel to the appellant though unintentionally by shifting the appellant to his parents house. The respondent has chosen a easy way out to wriggle out of his responsibility even though the marriage involves adjustment and compromise for a life time - In present case, so called admission by the appellant based on the averment of the respondent in the petition merely because the respondent has not effectively rebutted the same in counter does not justify an assumption and inference of cruelty to grant divorce. It has a deleterious consequences on the well being of the child born to them - Even if there was admission to the allegations in the petition filed in support of HMOP, averment made therein hardly make out a case for granting of decree for dissolution of marriage. We are convinced the Court committed error in granting divorce - Averments in the petition and the evidence on record do not disclose cruelty. Stray incidents that have been chronicled in the petition are so trivial and even if not denied specifically cannot mean that there was admission of cruelty. It can at best be admission to the pleading - We therefore feel that the institution of marriage between the appellant and the respondent deserves a chance to survive not only for the sake of each other but also for their progeny who has not been given the comfort and warmth of steady home to face the world - In view of the foregoing reasons, both the appeals are allowed. The respondent being an anesthetist is required to maintain the appellant and his child properly. Mere payment of Rs. 10,000/- as ordered by the Court was not sufficient. Considering the background of the parties herein, we are inclined to enhance the maintenance - Respondent shall deposit the amount to the credit of the appellant together with arrears with interest at 9% per annum from the date of Misc. Petition - Respondent is also directed take immediate steps to set up a separate matrimonial home within three months of the receipt of this order and take the appellant and their child with him – petition allowed
JUDGMENT :
C. Saravanan, J.
1. These two appeals and RCP's are directed against common fair and separate decretal orders dated 11.11.2016 passed by the Family Court, Madurai in HMOP No.320 of 2014 and HMOP No.426 of 2014 and a separate decretal order in M.C.No.67 of 2014.
2. The appellant and the petitioner before this Court is the wife (for the sake of uniformity referred to as "the appellant, appellant was the respondent in HMOP No.320 of 2014 and the petitioner in HMOP NO.426 of 2014 and M.C.No.67 of 2014.
3. By the decretal order in HMOP No.320 of 2014, the Family Court has dissolved the marriage solemnized between the appellant and respondent on 25.10.2009 under Section 13(1)(ia) of Hindu Marriage Act, 1955 and thereby allowed the said HMOP filed by the respondent husband. CMA No.1455 of 2016 has been filed by the appellant wife against decretal order in HMOP No.320 of 2014.
4. By the decretal order in HMOP No.426 of 2014, the Family Court has dismissed said application filed under section 9 of the Hindu Marriage Act for restitution of conjugal rights by the appellant. CMA No.1456 of 2016 is against decretal order in HMOP No.426 of 2014.
5. By the decretal order in M.C.No.67 of 2014, the Family Court has directed the respondent to pay a sum of Rs. 10,000/- only towards maintenance of the appellant. The above RCP has been filed against the same.
6. The respondent had originally filed the HMOP No.320 of 2014 for dissolving marriage between the appellant and the respondent solemnized on 25.10.2009 on the ground of cruelty under Section 13(1)(1-ia) of the Hindu Marriage Act, 1995.
7. HMOP.No.320 of 2014 was filed by the respondent husband on 22.3.2012 i.e. within 26 months of the marriage during which time the marriage was consummated and within 11 months of the marriage the appellant delivered their child on 1.9.2010.
8. The appellant spent much of her time either in the company of the parents of the respondent or away from the respondent at her parents house after the appellant became pregnant. The couple hardly lived together.
9. Entire edifice of the case for cruelty before the Family Court is based on few stray incidents which the Family Court has accepted as a good reason to conclude that the appellant was cruel to the respondent to grant a decree of divorce and reject her prayer for restitution of conjugal rights.
10. The appellant and the respondent have lived for a very brief period together. Initially, they lived in Pondicherry when the respondent was employed with the famous JIMPER Medical College and Hospital as an anesthesiologist and later in Coimbatore with respondent's parents after the respondent decided to re-locate take up employment in Coimbatore for good.
11. The couple appear to have indulged in petty quarrel during their short stay with each other which is primarily on account of the appellant's expectation for a separate matrimonial home when the respondent relocated the appellant to Coimbatore at the respondent's parents house and on account of attention the appellant sought from the respondent as a young bride during their initial stay in Pondicherry when also appellant became pregnant.
12. Ultimate precursor and trigger for filing HMPOP No.320 of 2104 by the respondent appears to be a threat from appellant's uncle named Ramasamy, a lawyer who appears to have advised the respondent to set up a separate matrimonial home away from his parents which the respondent did not take kindly.
13. It has been further alleged that on 16.03.2012 at about 8.30 p.m. two advocates came to the house of the respondent's parents house when the respondent was not at home and threatened the parents of the respondent that if the appellant did not agree for separate matrimonial home, they would lodge a complaint against the parents and sisters of the respondent.
14. It is the respondent's case that the appellant's uncle apparently threatened to ruin the respondent's career and to see that the members of respondent's family were also frame
