NARMATHA Vs. J. MURALI

JUDGEMENT

(1.) These two civil miscellaneous appeals have been directed against the impugned common order and decree dated 4.12.2017 made in H.M.O.P.Nos.32 & 2690 of 2013 by the learned III Additional Principal Judge, Family Court, Chennai.

(2.) Mrs.Narmatha, having lost her prayer for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in H.M.O.P.No.2690 of 2013 and also being aggrieved by the dissolution of marriage granting divorce in H.M.O.P.No.32 of 2013, has filed these civil miscellaneous appeals.

(3.) Mr.C.R.Malarvannan, learned counsel appearing for the appellant/wife pleaded that after the solemnization of marriage on 17.2.2010 between the parties at Sri Krishna Mahal, Nos.91-A & 91-B, North Park Street, Venkatapuram, Ambattur, Chennai, as per the Hindu rites and customs in the presence of well wishers of both family members, both the husband and wife were leading a comfortable and happy life. During the stay at the appellant's parental home, there was no discomfort caused to the respondent/husband. But it was the allegation of the respondent/husband that during the stay at his wife's place, he is said to have faced some insulting and embarrassing situation, because his wife's parents treated the respondent like a servant. In view of the above allegation, they proceeded to shift the place of residence to Anupuram nearby Kalpakkam, where the respondent was working. It was the further allegation of the respondent that after moving away the residence to Anupuram, it was alleged that the appellant's attitude completely changed, because the appellant is said to have not respected the respondent/husband, as she was all the time scolding his parents and other family members. However, in the meanwhile, a girl child was born on 18.12.2011 who is named as M.Shanmitha. Thereafter, when the first birthday function of their child was celebrated on 18.10.2012, the respondent/husband has tried to make out a case against the appellant/wife and he has also filed a petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act alleging that the appellant was causing mental cruelty. Yet another ground taken in the petition was really alarming, since he has alleged that the appellant was frequently talking to her boy friend one Mr.Chandrasekar. When the appellant knew Mr.Chandrasekar while she was employed before marriage in Hewlett Packard (HP) as a marketing executive, the appellant at no point of time met the said gentleman. But when the respondent was also well aware of the appellant's office colleague, mistaking the few phone calls made out to him, the respondent has tarnished the image of the appellant in the petition filed for divorce, as though the appellant has been frequently talking to the said gentleman and that incident had caused mental cruelty to him. Yet another allegation made against the appellant in the said petition was that she used to abuse the respondent and his family members with filthy language, which was not correct. In one place in the petition for divorce, the respondent has also unfairly alleged that the appellant has treated the respondent as slave and she also used to throw hot coffee and other articles on him, which was also not correct. Moreover, these averments and allegations were not even established before the trial Court. When the respondent has filed the petition charging the appellant/wife that she was treating the respondent/husband as slave and that she was also throwing hot coffee and other articles on him, neither of the allegation was substantiated before the trial Court. However, during the pendency of the said petition, as the respondent/husband has sought for a decree for dissolution of marriage, the appellant also filed H.M.O.P.No.2690 of 2013 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. In the petition for divorce invoking Section 13(1)(i-a) of the Hindu Marriage Act, the appellant also filed a detailed counter affidavit. After sometime, when the matters were taken up, the appellant was able to establish that she was all the time ready and willing to live with the respondent not only for herself but also for the future career of her girl child. When the appellant has been agitating all along by filing the petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, every allegation made against the appellant by the respondent/husband that the appellant/wife has caused mental cruelty that has consequently led to the dissolution of marriage, should have been rejected by the trial Court, inasmuch as the respondent/husband has taken out a petition for divorce, for the simple reason that she filed a domestic violence case in D.V.C.No.6 of 2014 before the Tirukalukundram Judicial Magistrate Court seeking right of residence to live with the respondent, that goes without saying that the appellant was all along craving for reunion and also in the alternative to live with him in his own house along with the girl child. But this has not been properly appreciated by the trial Court and wrongly going to a non-issue that the filing of the D.V.C.No.6 of 2014 before the Tirukalukundram Judicial Magistrate Court seeking right of residence and filing one another case before the Mahabalipuram All Women Police Station stating that she was facing life threat from the respondent, the trial Court mistaking the genuine efforts shown by the appellant, wrongly proceeded as though the appellant has caused mental cruelty to the respondent. Even today, the appellant is ready for living together. When the respondent has not even shown any response for reunion, the appellant was left with no other option but to move the application seeking maintenance for herself and her child. Therefore, the filing of application seeking monthly maintenance and also moving another application before the Tirukalukundram Judicial Magistrate Court seeking right of residence, cannot be taken as the reason or foundation for causing mental cruelty. Although eight long years had rolled away, still the appellant is ready and willing to live with the respondent/husband. Therefore, by setting aside the impugned common order and decree passed by the trial Court, both the civil miscellaneous appeals be allowed, he pleaded.