Madrasreserved High Court · 2025

C.M.A.No.2436 of 2024being the husband, must be aware about the medical ethics and the connected guidelines existed at the point of time with regard to the Assisted Reproductive Procedure prior to the commencement of the reproductive process. The entire process and the risks involved therein been explained to him and his wife as a commissioning couple, by the Expert Doctors. Only thereafter, the expert doctors have obtained their consent the voluntariness of the commissioning couple in on records. Hence, holding that it is clear that in order to settle his revenge against his wife, the petitioner has filed this application with malafide intention dismissed his petition with costs, directing the husband to pay a sum of Rs.3000/- to the respondent within a month. 12. With these pleadings, the parties went for trial, husband examined as P.W.1, 11 Exhibits in support of his case. The wife examined as R.W.1, 9 Exhibits filed in her support was considered.13. The Family Court had held that the wife has caused mental agony and mental cruelty to her husband. Hence, he is entitled to get relief of dissolution of marriage on the ground of cruelty.14. The decree of divorce is impugned in the present appeal on the ______________Page Nos.13/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024following grounds:(i) The Family Court had taken into consideration extraneous matters which does not form part of the pleadings. The Court on surmises, drawn erroneous inference that the husband had subjected to ill-treatment and cruelty. Court even without pleadings, by making a probing enquiry into the past conduct of the wife, the Family Court have gravely erred in granting divorce on the ground of cruelty.(ii) Ex.P.8, is the whatsapp communication alleged to have been sent by the wife. Nothing about this whatapp message spoken in the petition or in the testimony of the husband. In the cross examination of R.W.1, the whatsapp message was admitted in evidence, though it is an electronic evidence accepted on evidence without certificate under Section 65(B) of Indian Evidence Act. Though it was admitted by the wife in the cross examination, the content of the WhatsApp message, as canvassed by the husband to depict his wife in a bad light, was not an issue pleaded to afford opportunity to the respondent to defend.(iii) The conclusion of the Family Court regarding the car, which stood in the name of father-in-law and given as dowry to the husband is erroneous. ______________Page Nos.14/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024Admittedly it was in custody and use of the husband till he abandoned the car in front of his father-in-law’s hospital.(iv) The demand of dowry though well-established through evidence and partly admitted by the husband himself, same surprisingly ignored by the Family Court, by saying that the demands were made prior to the wedding and therefore not relevant.(v) The husband has gone to the extent of disowning his own child by filing an application to conduct DNA Test, which has grossly tarnished the appellant’s character and chastity.(vi) Furthermore, the failure of the husband to take efforts to see his child or enquiry about her well-being expose his indifference towards his daughter. Nevertheless, the Family Court favoured him and granted relief. (vii) The Family Court failed to consider the welfare of the minor child, who will be directly affected by the dissolution of marriage, ignoring the well-being of the child, had dissolved the marriage, which need to be interfered.______________Page Nos.15/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 202415. The Learned Counsel for the appellant emphasised and attacked the Family Court’s order primarily on the following two grounds:-(i). The husband, who had deserted his pregnant wife and taking advantage of his own wrong and had pleaded cruelty. Unfortunately contrary to the evidence available and the pleadings, the Family Court had overreached and decided based on issues not pleaded by parties.(ii) The family Court failed to take note of the welfare of the child and given premium to the husband, who had cruel enough to disown his own child by filing an application for DNA test.16. The Learned Counsel appearing for the respondent submitted that the counter-allegations made against the husband without any sign of intention to reunite, suffices to hold that the marriage has broken irretrievably by accusations of cruelty against each other. He further submitted that the husband was forced to take out an application for DNA test because he was given to understand that his sperm was not used in IVF procedure. However, he had not pursued the matter any further after the dismissal of the Interlocutory application by the Family Court.17. The Learned Counsel appearing for the respondent/Husband claims ______________Page Nos.16/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024that the divorce was granted on cumulative examination of the averments found in the pleadings and testimony. The Family Court had extracted the relevant portions in the testimony of the parties, which would indicate that by frequent quarrel, the husband been put to mental cruelty and by total disrespect when his family visited her house to see the child was the last straw on the camel’s back which broke the possibility of reunion.18. Heard the Learned Counsels and records perused.19. Two young highly educated persons who loved each other before marriage, were not able to sustain their love and affection even for 5 years after their marriage. Meanwhile, they have also begotten a child through Assisted Reproductive Process. The Husband had approached the Court with accusations against his wife attributing cruelty. Whereas, the counter of the wife is in equal accusation about her husband. For every incident, he had cited as cruelty, she has an alternate incident of cruelty by husband.20. From the events placed before us by way of evidence and testimony, we are able to find that after the husband left his pregnant wife during the April 2019, without any acceptable reason, the husband had lost his trustworthiness. ______________Page Nos.17/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024None of the family elders from the either side seems to have shown any inclination to save the matrimonial relationship. Soon after the child’s birth, when the husband and his family members visited the hospital where the appellant was admitted for delivery there was an opportunity for burying difference. Lastly when they visited the house of the appellant for child naming ceremony they could have attempted to reproach. Whereas, while referring about this incident, the husband states that when he and his family members visited the hospital, they were not received with courtesy by the family members of his wife. When his father and sister went to the home of his wife for naming ceremony of the child, they were verbally abused and ill-treated. To this allegations, the wife had contended that in the hospital when they visited to see the child, they spoke rudely to her father for screening the fact that she was conceived. When they came for child naming ceremony, she was busy in pooja, however her family members took care of the visitors properly. 21. Regarding the visit to her house for naming ceremony, her grievance is that the husband did not come and his family members were treated at the most respect. She has also produced photographs of the child naming ceremony in which father-in-law and Sister-in-law were present in the function and taken photograph. What we fail to see that at that time, when they had an ______________Page Nos.18/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024opportunity for the family members to reconcile the broken relationship, it did not occur.22. On reading the Lawyer notice given by the husband and wife reply to the husband, we are able to see that the wife had requested her husband to wait and not to act in haste. However, soon after the reply, the husband has filed the divorce petition.23. The allegations in the divorce petition making out ground for cruelty and matching allegations in the form of counter by the wife even taken on face value, nowhere, the parties have expressed any sign of burying their differences and the desire to lead life jointly. The very disheartening factors in this case is that neither the parties nor the Family Court, which has granted divorce had whispered anything about the welfare of the child, who had been brought to the world not as a natural consequence but by scientific assistance with the consent of the parties who are now at loggerheads.24. Much has been said about Ex.P.8, which is the WhatsApp message admittedly sent by the wife to her husband, disclosing an incident, which involves a boy in her life prior to marriage. Though the trial Court has given ______________Page Nos.19/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024much weightage, dehors this evidence, the cruelty aspect which has been ground for granting divorce stands proved. 25. The content of Ex.P.8 is beyond the pleadings and scope of the divorce petition. Likewise, the interlocutory application filed for the DNA test is also beyond the pleadings. We are only constrained to say that these two factors are the product of the external assistance got by the parties. The original pleadings of the husband does not contain anything about his doubt regarding the paternity of the child nor the character of his wife. By making irresponsible allegations, the strained relationship between husband and wife had become worst. 26. Record reveals that several attempts were made by the Court for amicable settlement between the parties. The Family Court has seen and heard the two sparing parties before it, but failed to consider the welfare of the child who is the real victim in the fight between the parents. However, all the attempts had ended in vain.27. Repeatedly, in the course of argument, it was contended that the respondent, who has disowned his child and deserted his pregnant wife, cannot ______________Page Nos.20/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024have the advantage of divorce. Whereas, it is contended by the Learned Counsel for the respondent/husband that a person who was willing to stay in his in-laws house which is normally stigma in the Indian Society particularly in Tamil Nadu, was driven out from the house by treating him disrespectfully. 28. The allegations and counter-allegations going unended even while the matter was heard by this Court, there is no scope of meeting. What we could see from the contention of the appellant is that she been now forced to rear the child alone, without any financial support. She is not expecting any emotional support from the respondent with whom she has lost faith and trust. In her cross-examination, she states that the only dispute between them is the conduct of her husband, who used to drink and come home to torture her. It is obviously clear that the parties keep on adding the allegations, been improvising their case from the date of exchange notice till the date of adducing evidence. In the given circumstances, since the parties are well-educated and grown up, if they are not inclined to reunite and lead the marital life, but only interested in making accusations against each other, there is no purpose in retaining the marital status. 29. At this juncture, we hold the Family Court, while considering the ______________Page Nos.21/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024petition filed on the ground of cruelty, ought not to have given much space for discussing Ex.P.8. Nonetheless, even on eschewing those portion, we find that the findings of the Family Court regarding other incidence are probable view and it cannot be held as perverse.30. We also find the Family Court failed to protect the interest of the minor child, as parens patriae. It should have made some arrangements for the maintenance of the child. This is an area where we concern not only in this case but in many cases, when we find even when spouses seek for mutual divorce, the future of the children is often left untouched, without ensuring a secure future for them. In many instances, Family Courts grant divorce but only in few cases, the custody and maintenance of the children been considered, even if there is no prayer for the relief. Courts must always bear in mind that, as parens patriae, we owe duty to protect the interest of child of broken marriage. Granting divorce without considering the welfare of the child is ranked injustice. 31. Therefore, we suggest the Family Courts in the State, whenever there is a dispute between the parents, Courts while granting any relief sought by the parents, even if no maintenance, alimony or custody of the Child is sought from ______________Page Nos.22/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024the other side, in exercise of parens patriae jurisdiction, the Courts should ensure the interest of the minor child and pass appropriate order. 32. In this case, considering the fact that both husband and wife are well-educated, post-graduate Doctors having sufficient income as well as assets, so commensurating their status, the child has to be brought up by giving quality education, Standard of living and comfort particularly, the child been an IVF child and the respondent is the biological father, he cannot abdicate his responsibilities getting divorce making allegations of cruelty against the wife and himself cause desertion of his child. 33. The Hon’ble Supreme Court has consistently held that parents have a fundamental legal and moral responsibility to maintain their children until they reach the age of majority, regardless of marital disputes or the parents' own financial status. The Court's responsibility is to ensure the child's best interest is paramount, meaning a child's welfare, education, and comfort should not suffer due to parental conflict. In custody and maintenance cases, the Court will prioritize the child's needs by considering factors like comfort, health, education, and a stable, loving environment. The Family Court while granting divorce ought to have taken note of the fact that the child with the mother is not ______________Page Nos.23/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024provided with any financial assistance from the father. Adequate financial assistance ought to have been granted even though there was no pleadings. Unfortunately, the parties as well as the Court had focused only on the allegations, refute and counter allegations. 34. We are duty-bound to emphasis that the father, has a duty to maintain the female child till her marriage. This obligation remains regardless of the parents' marital status or the mother's earning capacity. The child has a right to be maintained at a standard that is consistent with the parent's social and economic status. The child should not suffer because of disagreements between parents or for her mother being the guardian choosing not to file any petition for the maintenance of the child. Even in cases, there is no pleadings or separate petition for maintenance of the child, Court being parens partriae of the minor child before granting divorce, should consider the welfare of the child and direct the parties to provide adequate financial assistance for the well being of the child, and should ensure, whenever a decree of divorce is granted (either after contest or by consent), financial support order for the minor children must be part of it. As the Hon’ble Supreme Court said in Apurva @ Apurvo Bhuvanbabu Mandal -vs- Dolly and others reported in [(2024) LiveLaw (SC 977)], ‘the right to maintenance is commensurate to the right to ______________Page Nos.24/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024sustenance. This right is a subset of the right to dignity and a dignified life, which in turn flows from Article 21 of the Constitution of India. In a way, the right to maintenance being equivalent to a fundamental right will be superior to and have overriding effect than the statutory rights afforded to Financial Creditors, Secured Creditors, Operational Creditors or any other such claimants encompassed within the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the Insolvency and Bankruptcy Code, 2016 or similar such laws.’35. Therefore, this Court, in exercise of its parens patriae jurisdiction, we direct the respondent/husband to deposit a sum of Rs.60,00,000/- (Rupees Sixty Lakhs only) within two months today, in the name of his minor Child/Pujyasree, in any Nationalised Bank appointing the mother as guardianship and kept in deposit, till she attains the age of majority. The interest accrued be permitted to be withdrawn by the mother and shall be utilized for the child welfare. The mother/appellant herein is permitted to withdraw the interest on every quarterly basis to use for the need of the child. That apart, the respondent/Husband is directed to pay a sum of Rs.40,000/- (Rupees Forty Thousand only) every month towards the education and other expenses for the minor child. This amount to be received by the appellant on ______________Page Nos.25/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024behalf of the minor daughter/Pujyashree. This direction is independent of right of the appellant and her child seeking maintenance, if they desire in future. There is a specific allegation against the respondent that he has never visited the child or seen the face of the child, whereas the respondent alleges that the appellant has not allowed him to see the child. Such allegations and counter-allegations may satisfy the egos of the parties but not the interest of the child. Therefore, this Court grant the respondent to have right of visitation of his daughter/Pujyasree, twice a month, any given day for five hours each. The appellant shall facilitate visitation of the minor child by her father, the respondent herein. 36. This Court hopes the parties will realise that they have brought a little angle with Scientific Assistance to this world in pursuit to the endeavour to bear a child. The said child cannot be left to grow under single parent. They both have equal responsibility to give love, care, protection and utmost comfort equal what they enjoy. The directions issued by this Court hope will provide what the minor child deserves.37. With these observations and directions, this Civil Miscellaneous Appeal stands dismissed. There shall be no order as to costs. ______________Page Nos.26/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 2024(Dr.G.J, J.) & (M.S.K, J.) 28.11.2025Index:Yes.Neutral Citation:Yes/No.Internet:Yes.bsmTo,1. The II Additional Principal Family Court, Chennai.2. The Section Officer, V.R.Section, High Court, Madras.Dr.G.JAYACHANDRAN, J.&MUMMINENI SUDHEER KUMAR, J.bsmPre-delivery judgment made inC.M.A.No.2436 of 2024______________Page Nos.27/28 https://www.mhc.tn.gov.in/judis C.M.A.No.2436 of 202428.11.2025______________Page Nos.28/28