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2023 Supreme(Online)(MAD) 30803
MADURAI BENCH OF MADRAS HIGH COURT
G.RAJA NAGANATHAN – Appellant
Versus
K.KOWSALYA – Respondent
CMA(MD) 527 2021
The Court held that the husband had not proved the allegations of cruelty, desertion, or adultery. The Court also held that the wife was entitled to restitution of conjugal rights.
Headnote:
HINDU MARRIAGE ACT - [CRUELTY] - [DESERTION] - [ADULTERY] - Non-printing of the name of the brother and brother's wife in the marriage invitation, non printing of the name of the wife in the ear piercing ceremony invitation and attending of the funeral of the grand-father cannot be termed as a cruelty caused by the wife on the husband.
Fact of the Case:
The husband filed a petition for divorce on the grounds of cruelty, desertion, and adultery. The wife filed a petition for restitution of conjugal rights. The Family Court dismissed the husband's petition and allowed the wife's petition.
Finding of the Court:
The Court found that the husband had not proved the allegations of cruelty, desertion, or adultery. The Court also found that the wife was entitled to restitution of conjugal rights.
Issues: Whether the husband had proved the allegations of cruelty, desertion, or adultery.Whether the wife was entitled to restitution of conjugal rights.
Ratio Decidendi: The Court held that the husband had not proved the allegations of cruelty, desertion, or adultery. The Court also held that the wife was entitled to restitution of conjugal rights.
Final Decision: The Court dismissed the husband's appeal and allowed the wife's appeal.
C.M.A(MD)Nos.527 and 528 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 16.11.2023
Delivered on: 21.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.M.A(MD)Nos.527 and 528 of 2021
G.Raja Naganathan
... Appellant
in both appeals
Vs.
K.Kowsalya
... Respondent
in both appeals
Prayer in both petitions:- Civil Miscellaneous Appeal filed under Section
28(1) of the Hindu Marriage Act, 1955 against the order dated 25.02.2021
made in H.M.O.P.No.106 of 2019 and 232 of 2019, on the file of the
Family Court, Sivagangai District.
For Appellant
: Mr.S.Jeyakumaran
For Respondent
: Mr.S.Poorna Chandran
1/19
https://www.mhc.tn.gov.in/judis
C.M.A(MD)Nos.527 and 528 of 2021
COMMON JUDGMENT
RMT.TEEKAA RAMAN,J.
The unsuccessful husband is the appellant herein.
2. For the sake of convenience, the parties are referred to according to
their litigative status before the trial Court as husband and wife.
3. The husband filed H.M.O.P.No.106 of 2019 before the Family
Court, Sivagangai for dissolution of marriage on the ground of cruelty,
desertion and adultery and the wife filed H.M.O.P.No.232 of 2019 for
restitution of conjugal rights. Joint trial was conducted and the evidence
was recorded in H.M.O.P.No.106 of 2019.
4. Considering the oral and documentary evidence, the Family Court
Judge, Sivagangai allowed the petition filed by the wife for restitution of
conjugal rights, however, dismissed the petition filed by the husband for
the relief of divorce and hence, these appeals were filed.
2/19
https://www.mhc.tn.gov.in/judis
C.M.A(MD)Nos.527 and 528 of 2021
5. C.M.A(MD)No.527 of 2021 has been filed by the husband
challenging the findings of the Family Court regarding the cruelty,
desertion and adultery. The learned counsel for the appellant / husband
would draw our attention to the specific plea raised in the divorce petition
that on 29.12.2014 wife was found in the company of one Ganesan, who is
working as BT teacher where their children are studying and thereafter
attempted to consume poison and she was retrieved and therefore, both are
living separately since 2014 and she was continuing in chat with the said
Ganesan and hence, the appellant / husband was affected by mental cruelty
and it amounts to cruelty and besides she committed adultery.
6(a). The learned counsel for the respondent / wife based upon the
counter statement filed before the Family Court would contend that two
children namely Sivasabaris (Date of Birth 13.07.2007) and
Gowthamsharma (Date of Birth 31.05.2009). The children are with the
mother and because of the transfer effected by the husband at Padamathur
and they are living separately only from 2014 and hence pre-condition for
“desertion” namely “separation for two years” is not complied.
3/19
https://www.mhc.tn.gov.in/judis
C.M.A(MD)Nos.527 and 528 of 2021
6(b) Three incidents were referred to, in the petition viz., (i) in the
marriage function, name of the brother of the husband and sister-in-law
were not printed in the marriage invitation; (ii) secondly, for 'ear piercing
ceremony' for the appellant's elder brother's children, the respondent name
was not printed in the invitation and hence, the appellant and the
respondent were went to Tiruchendur and hence, not attending the ear
piercing ceremony; and (iii) thirdly, there was a dispute between the father
of the husband/apellant and his younger brother in connection with
attending the funeral of the Salugai in which the appellant / husband could
not participated, however the wife and her family members have
participated in the funeral [since the wife is related to the husband even
before the marriage (Aunt's daughter)] and all the three incidents have
been blown out of proposition and hence, the Family Court Judge
dismissed the divorce petition.
7. After hea
