CMA(MD) NOs. 1087 and 1123 of 2022 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21-03-2025 CORAM THE HONOURABLE DR JUSTICE G. JAYACHANDRAN AND THE HONOURABLE MS.JUSTICE R. POORNIMA CMA(MD) NOs. 1087 and 1123 of 2022 and CMP(MD)NO.11463 of 2022 Kalirajan @ Rajan Demathew ... Appellant in both C.M.A.(MD)

Vs K.Mary Fora ... Respondent in both C.M.A.(MD)

Prayer in C.M.A(MD).No.1087 of 2022: This Civil Miscellaneous Appeal has been filed under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order passed in I.D.O.P.No.3 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022 and grant an order of decree under Section 10(1)(x) of Divorce Act, 1869.

Prayer in C.M.A(MD).No.1123 of 2022: This Civil Miscellaneous Appeal has been filed under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order passed in I.D.O.P.No.16 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022 and grant an order of decree under Section 32 of Divorce Act, 1869.

For Appellant : Mr.T.S.Mohamed Mohideen (in both C.M.A.(MD)

For Respondent : M/s.U.Nirmalarani (in both C.M.A.(MD)

ORDER

(Order of the Court was made by the Hon'ble G.Jayachandran J.)

By this common order both the civil miscellaneous appeals are being disposed of.

2. I.D.O.P.No.3 of 2019 was filed by the petitioner/husband under Section 10(1)(x) of the Indian Divorce Act, 1869 and I.D.O.P.No.16 of 2019 filed by the wife/respondent under Section 32 of the Indian Divorce Act, 1869 for the restitution of conjugal rights .

3. The facts of the case is that on 02.09.2013, the marriage between the petitioner and the respondent got solemnized as per Christian rites. According to the petitioner/husband, marriage was not consummated due to non-cooperation of the respondent/wife. The respondent/wife left the matrimonial home and stayed with her parents for a while. Thereafter, she returned to her matrimonial home on 04.06.20214 but was behaving erratically and causing mental cruelty. When the petitioner/husband enquired about the same, he found that the respondent/wife had already married another person and got divorced. By suppressing all these facts, the respondent/wfie had married the petitioner/husband but refused to cohabit with him.

4. In the I.D.O.P.No.16 of 2019 filed by the respondent/wife for restitution of conjugal rights, she has contended that after solemnization of marriage, the matrimonial home was set up in a portion of the small house, wherein the parents were also residing and the reason for non-consummation of marriage was for want of privacy. Thereafter, five kilometres away from her native, separate home was set out in a rented house and they were living happily. However, due to the ill advice of her mother-in-law, the petitioner/husband started treating her indifferently and even after she got conceived, she was not provided with enough care. The fetus was aborted due to the ill treatment. Thereafter, when she along with her parents went back to the matrimonial home, she was not received by the petitioner/husband due to ill advice of the in-laws. The efforts taken by the elders in the Church did not yield any result. Since the petitioner/husband has willfully withdrawn from the matrimonial company, an order of restitution of conjugal rights sought. The Trial Court on petition took up both the cases together and conducted common trial. On considering the evidence, the Trial Court allowed the petition filed by the respondent/wife for restitution of conjugal rights and dismissed the petition filed by the petitioner/husband for divorce.

5. The contention of the petitioner/husband that the earlier marriage of the respondent/wife with one Jones @ Ponniah was suppressed and his marriage was solemnized when the earlier marriage was in subsistence was rejected by the Trial Court stating that the petitioner/husband has married the respondent/wife only after knowing the resolution of the earlier marriage.

6. The learned counsel appearing