C.M.A.Nos.1592 and 1593 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.02.2023

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

and

THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

C.M.A.Nos.1592 and 1593 of 2017

and CMP.No.13259 of 2017

Mythili

...appellant in both the appeals

Vs.

S.Ganesan

...respondent in both the appeals

Prayer in CMA.No.1592 of 2017: Civil Miscellaneous Appeal filed

under Section 19 (1) of Family Court Act 1984 to set aside the order and

decreetal order dated 28.03.2017 passed in OP.No.4105/2010 by the

Hon'ble I Additional Principal Judge, I Addl. Family Court, Chennai and

consequently to allow O.P.No.4105 of 2010.

Prayer in CMA.No.1593 of 2017: Civil Miscellaneous Appeal filed

under Section 19 (1) of Family Court Act 1984 to set aside the order and

decreetal order dated 28.03.2017 passed in OP.No.816/2011 by the Hon'ble

I Additional Principal Judge, I Addl. Family Court, Chennai and

consequently to dismiss O.P.No.816 of 2011.

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C.M.A.Nos.1592 and 1593 of 2017

For Appellant

: Ms.Uma Vidyapathi

(in both the appeals)

For Respondent

: Served. No Appearance

(in both the appeals)

C O M M O N J U D G M E N T

[Judgment of the Court was delivered by R.SUBRAMANIAN, J]

These appeals are at the instance of wife challenging the dismissal of

the Original Petition filed by her seeking divorce on the ground of cruelty

and allowing the Original Petition for restitution of conjugal rights filed by

her husband.

2. The appellant married the respondent on 16.02.1990 and they have

2 sons out of the marriage. Almost after 20 years of the marriage, the

appellant sought for divorce on the ground of cruelty contending that the

respondent had made various false allegations against her, which include

the allegations regarding her chastity. It is the further contention of the

appellant/wife that her husband had never taken care of the family and all

expenses including household expenses were borne by her. It is also added

that the respondent has taken away the earnings, house documents and gold

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C.M.A.Nos.1592 and 1593 of 2017

and silver articles from the appellant and refused to part with his salary. It is

also contended that he had in his reply to the lawyers notice describing her

as an immoral person. It is also claimed that the respondent had falsely

associated the appellant with her colleague one Mr.Muralikrishnan.

Contending that these allegations per se amount to mental cruelty, the

appellant sought for divorce. Soon thereafter, the respondent filed the

Original Petition in O.P.No.816 of 2011 seeking restitution of conjugal

rights under Section 9 of the Hindu Marriage Act. Even in the said petition,

while seeking restitution, the respondent had stated that the appellant has

got illicit intimacy with one Muralikrishnan. Even after saying so, he would

seek restitution of conjugal rights.

3. Before the Family Court, the petitioner in HMOP.No.4105 of 2010,

the appellant/wife was examined as PW1 and respondent/husband was

examined as RW1. Exhibits P1 to P9 were marked on the side of the wife

and Exhibits R1 to R8 were marked on the side of the husband. The Family

Court on appreciation of the evidence concluded that since the couple have

got one major and one minor son, the family cannot be separated. The

Family Court also accepted the explanation offered by the husband to the

contents of the Ex.P6 document to the effect that he was asked to write like

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C.M.A.Nos.1592 and 1593 of 2017

that by his father. Therefore, the Family Court concluded that there was no

mental cruelty.

4. We have heard Ms.Uma Vidyapathi, learned counsel appearing for

the appellant. Though the respondent was served, does not appear either in

person or through counsel duly instruct.