M. Sankar v. Devaki

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.4.2009CORAMTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE T.S. SIVAGNANAMC.M.A.NO.2840 & 2841 OF 2004M. Sankar... Appellant in both the CMAs.Vs.Devaki... Respondent in both the CMAs.Civil Miscellaneous Appeals filed under Section 19 of the FamilyCourt Act, 1984 against the fair and decreetal orders dated 15.4.2004passed in F.C.O.P.No.203 of 2003 and 47 of 2000 on the file of theFamily Court, Salem.For Appellant : Mr. P. ManiFor Respondent : Mr. S. SubbiahJ U D G M E N T(Judgment of the Court was delivered byPrabha Sridevan, J. These two appeals are filed by the husband against the dismissalof his petition for divorce under Section 13(1)(ia) of the HinduMarriage Act, 1955 in FCOP.No.203/2003 and against the decree forrestitution of conjugal rights granted in favour of the wife passedin F.C.O.P.No.47 of 2000.2. The parties were married in accordance with the Hindu SastricRites and caste and community customs on 30.11.1998 in Salem. Theystarted their life at Kadathur. The wife was employed as a Clerk atthe Primary Agricultural Co-operative Bank Ltd., at Valasayur. Forthree months, the wife was going to Valasayur from Kadathur to attendto her official duties. The distance between Valasayur and Kadathurwas 60 kms. She used to hand over her salary to the husband as soonas she received it. She became pregnant and travelling daily 60 kmsin the early months of pregnancy was found difficult and the Doctoradvised her not to travel such a long distance every day. So, both ofthem decided to take a house for rental at Valasayur. The husbandinformed her that he had no income and he is not a graduate. They https://hcservices.ecourts.gov.in/hcservices/ paid a sum of Rs.8,000/- towards advance for a house at Valasayur fora monthly rent of Rs.450/-. The said sum was paid by the wife. Theystarted living in Valasayur from 14.3.1999. According to the wife,the husband made a demand for dowry of Rs.50,000/- to start anindependent business. The husband also had gone to the wife's officeand told the bank President that she should resign her job. After thewife convinced him, he obliged her to continue the said job.Thereafter, he returned to Valasayur and both were living together.On 12.6.1999, the husband informed that he is going to Coimbatore dueto some personal work. At that time, she was 7 months pregnant.Thereafter, inspite of repeated letters, he did not return. The childalso died because of the mental stress caused to the wife on accountof his desertion. In these circumstances, she filed the petition forrestitution of conjugal rights.3. The husband in his counter denied all the allegations.According to him, he was treated very badly by his in-laws atValasayur and his wife had also treated him badly because she wasmore educated than he was. According to him, he is entitled todivorce on the ground of desertion and cruelty. 4. The learned counsel for the petitioner referred to theevidence given and submitted that the respondent did not dischargeher duty as he did not allow him to exercise his conjugal rights. 5. On the other hand, the learned counsel for the respondentsubmitted that it was only the husband who ill-treated the wife andhe had even gone to her place of her work and created a scene anddemanded that she should resign her job. Even thereafter, they hadbeen living together in Valasayur. It is submitted that the wifemight have chosen her parents' house in Valasayur, but only becauseit was time for delivery and she did not vacate the independent houseat Valasayur for several months and she lived in the home on thehope that he would return to the matrimonial home. According to thelearned counsel for the respondent, she has not done any cruelty andit was the husband who left her without any reason leaving her in thestreet. According to him, even now the wife is living with thehusband. 6. The learned counsel for the petitioner has relied on DURGAPRASANNA TRIPATHY VS. ARUNDHATI TRIPATHY (2005 (4) CTC 287), whereinexercising its power under Article 142 of the Constitution of India,the Hon'ble Supreme Court directed that the marriage between theparties would stand dissolved on the ground that the marriage hadirretrievably broken down after a period of 14 months in separation.We do not think that we can follow that judgment in this particularcase.7. We find that the Family Court had examined the evidence verycarefully and come to the conclusion that the husband had not proved https://hcservices.ecourts.gov.in/hcservices/ his case of cruelty. The fact as to their movement from Kadathur toValasayur and the distance between Kadathur and Valasayur which is60 kms are admitted. The wife had become pregnant and medically asunfit to travel such a long distance and the husband had admittedthat the road was badly maintained and her father had decided to fixthe house at Valasayur, so that she need not travel long distance toattend her office. Therefore, the shifting to Valasayur was onlybecause the wife had become pregnant and was medically advised not totravel 60 kms every day. Though in the pleadings, the husband hadsaid that she did not behave properly, absolutely no incidents aregiven as to her acts of cruelty or acts of misconduct. The evidenceof the wife that every month she handed over the salary to herhusband also remains unrebutted. Therefore, his case that becauseshe was more educated, she treated him badly, is not clearly provedby evidence. His evidence that the wife scolded him when he went tohis father's house on the death of the child is not supported bypleadings and his case that she did not allow him to exerciseconjugal rights are not proved as seen from Ex.R1, the legal notice,wherein it is stated that "my client and Devaki mentioned as No.1 areliving together as husband and wife with love and affection."Therefore, the allegation that she did not allow him to exercise theconjugal rights does not appear to be correct. The wife had stated inher evidence that "my father-in-law said that if my husband shouldlive with me, the patta of a house should be in his name atValasaur." This is not challenged in cross examination. It is evidentthat she was removed from service after 1.3.2001 and admittedly, thehusband went to her office and insisted that she should not continueto work in the interest of their married life. She had accepted it.Even after the delivery, a separate house was not vacated, the wifehad paid the rent on the belief that the husband would come to seeher and join her. The allegations of cruelty are vague and lackparticulars. The wife had given up her job at his instance. Theallegation that she denied him conjugal rights is not correct. Shehad in fact borne him a child which died. Her health reasons made hermove to Valasayur. It was he who left her. She retained that home inthe hope he would return to her. In view of the above, we are unableto grant him his prayer for divorce.8. The conclusion of the Family Court is correct and therefore,no interference is called for. Accordingly, the civil miscellaneousappeals are dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kb https://hcservices.ecourts.gov.in/hcservices/ To1.The Judge, Family Court, Salem.2.The Section Officer, V.R.Section, High Court, Madras.+ 1 CC To Mr.S.Subbiah, Advocate SR NO.16238 CMA.No.2840 & 2841/2004CK {CO}TP/14.5.2009.