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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
PUSHPA SATHYANARAYANA, S. KANNAMMAL, JJ.
Sornalakshmi – Appellant
Versus
K.G. Sivakumar – Respondent
C.M.A(MD) No. 122 of 2016 & CMP(MD) No. 2018 of 2016
Decided On : 30-03-2021
Domestic Violence Act – Family Courts Act 1984 – Section 9 – Ground of cruelty – Desertion – Petition for divorce – Civil Miscellaneous Appeal filed under Section 9 of Family Courts Act 1984, to set aside the decreetal order, passed in H.M.O.P. on the file of the Family Court – Appellant/wife has also filed M.C. before Family Court and it was referred before Lok Adalat – On hearing that appellant gave birth to a male child, respondent/husband tried to contact appellant/wife over phone but appellant threatened him that she would run away to some place out of his reach, if respondent comes to see them. – Though respondent was willing to live with appellant, appellant refused to live with him. – Respondent/husband was permitted to see his child at Salai Kumarasamy Temple at Tirunelveli junction. – Respondent went to see his child at specified place and when he tried to talk with appellant, appellant conveyed that she was not interested to talk with respondent/husband and left place in a short period. – Though counseling was held for eight times before Lok Adalat, no settlement was arrived before Lok Adalat and petition was remitted to Judicial Magistrate No.1, Tirunelveli. – Appellant not pressed application and same was closed. – Though respondent had taken much efforts to live with appellant, appellant without any reason was living separately from respondent. – Respondent/husband sent a legal notice for reunion, but appellant had not taken any steps to come and live with respondent. – Hence respondent filed a petition for divorce on ground of cruelty and desertion.
Finding of the Court:
Appellant/wife with main aim of deserting widowed mother in law and to deprive her from affection and support of her only son had preferred a complaint before a social welfare officer with false and flimsy allegations which obviously amounts to cruelty on the part of appellant and she is not entitled for the relief sought for – Apex court has held that conduct of respondent wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother- in-law, amounts to Mental cruelty. – Appellant/wife in order to have a separate family by leaving the respondent’s mother made false allegations and false complaints. – When it is proved that there was no dowry harasment and the intention of the appellant was to have a separate family the act and attitude of the appellant amounts to nothing but mental cruelty. – For offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). – Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. – Petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period – Court is of considered view that well considered decree of divorce granted by trial Court does not call for any interference by this court –
Result: Civil Miscellaneous Appeal Dismissed
JUDGMENT :
(Prayer: Civil Miscellaneous Appeal filed under Section 9 of the Family Courts Act 1984, to set aside the decreetal order, dated 05.05.2015 passed in H.M.O.P.No.292 of 2014 on the file of the Family Court, Tirunelveli.)
S. Kannammal, J.
1. This Civil Miscellaneous Appeal is preferred against Judgment and Decree passed in H.M.O.P.No.231 of 2013, dated 05.05.2015 by the Family Court, Tirunelveli.
2. The case of the respondent/husband is that the marriage between the appellant/wife and the respondent/husband was solemnized on 31.08.2011 as per Hindu Rites and Customs. At the time of marriage, the appellant was working as a Manager in Axis Bank at Tirunelveli. During marriage, the appellant/wife was given jewels and household articles, but the respondent has no personal knowledge. After marriage, the respondent/husband and the appellant/wife had lived together happily for fifteen days at respondent/husband's house. On 15.09.2011, the appellant/wife went to her parent's house to see her mother who was unwell. After ten days, when the respondent/husband went to the appellant's house to bring her back, both the appellant/wife and her parents insisted the respondent to live with them for which the respondent claimed that he cannot leave his aged mother, who was suffering from illness. The appellant/wife without having interest to live with the respondent, came with the respondent. Since the appellant was not interested in the family life, she failed to behave as a dutiful wife and did not show any interest in the matrimonial life. Since she was employed she behaved adamantly with a rigid face. The attitude of the appellant caused mental agony to the respondent. Since the appellant/wife was a Manager in the Bank, the respondent took care of the appellant in all manner and he took up the family responsibility. When the appellant was conceived, the respondent allowed her to stay with her parents and from there, she went to her job. Though the respondent informed about his circumstances that he could not leave his aged and sick mother alone, the appellant/wife insisted the respondent to come and live with her in her parent's house. On 29.12.2011 the appellant/wife gave a complaint against the respondent/husband and his mother before the District Social Welfare Officer, Tirunelveli stating that she was asked to enter the kitchen only after taking bath and she was insisted to take the first month salary after keeping the same in the Pooja room and she was insisted to do the household works. On 06.10.2011, the District Social Welfare Officer, Tirunelveli advised the appellant/wife to live with the respondent, but the appellant/wife wanted to live with the respondent separately. During counseling the appellant/wife told that she was not willing to live with the respondent, which caused mental agony to the respondent. The appellant/wife has also filed M.C.No.4 of 2012 before the Family Court and it was referred before the Lok Adalat. On hearing that the appellant gave birth to a male child, the respondent/husband tried to contact the appellant/wife over phone but the appellant threatened him that she would run away to some place out of his reach, if the respondent comes to see them. Though the respondent was willing to live with the appellant, the appellant refused to live with him. The respondent/husband was permitted to see his child at Salai Kumarasamy Temple at Tirunelveli junction. On 25.10.2012, the respondent went to see his child at the specified place and when he tried to talk with the appellant, the appellant conveyed that she was not interested to talk with the respondent/husband and left the place in a short period. Though the counseling was held for eight times before the Lok Adalat, no settlement was arrived before the Lok Adalat and the petition was remitted to Judicial Magistrate No.1, Tirunelveli. On 31.05.2013, the appellant not pressed the application and the same was closed. Though the respondent had taken much effor
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