High Court · 2025

C.M.A No.940 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 10.01.2025PRONOUNCED ON: 29.04.2025CORAM:THE HONOURABLE MRS. JUSTICE J.NISHA BANUANDTHE HONOURABLE MR. JUSTICE R.SAKTHIVELC.M.A No.940 of 2024and C.M.P.No.8784 of 2024R.Krishnaveni... AppellantVs.P.S.Dharmaraja... Respondent PRAYER: Civil Miscellaneous Appeal filed under Section 19 of Family Courts Act as against the fair and decreetal order dated 07.08.2023 passed in F.C.O.P. No.109/2022 and FCIA No.05/2023 on the file of the Family Court Judge, Ariyalur. For Appellant:Mrs.P.SubathraFor Respondent:Mrs.R.Meenal J U D G M E N T(Judgment of the Court was made by J.NISHA BANU, J.)Petition in F.C.O.P. No.109/2022 was preferred by the respondent/husband against the appellant/ wife before the Family Court, ______________Page No.1 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024Ariyalur, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act'), seeking to dissolve their marriage on the ground of cruelty. Meanwhile, F.C.I.A.No.5 of 2023 was filed by the wife under Section 27 of the Act and Section 151 of the C.P.C. against her husband to hand over the Sridhana articles, household articles, jewels and a cash of Rs.50,000/- and a two-wheeler to the wife. 2. The trial Court allowed the petition filed by the husband, thereby dissolving the marriage that was solemnized between the parties and partly allowed the petition filed by the wife in F.C.I.A.No.5 of 2023, directing the husband to return 11 ¾ sov of gold jewels to the wife and further directed the wife to return 18 ½ sov of gold jewels to the husband, within a period of three months. Aggrieved against the said order, the wife has preferred the present civil miscellaneous appeal.3. The learned counsel appearing for the appellant submits that the marriage between the appellant/wife and the respondent/ husband was solemnized on 25.11.2018. It was an arranged marriage, wherein the appellant's parents presented 20 sov. of gold jewels along with Sridhana articles, household articles, cash of Rs.50,000/- and a Royal Enfield two-wheeler. At the time of marriage itself, the respondent's father was seriously ill. Subsequently, the respondent's father passed away on 18.12.2018, after which, the respondent and his family members blamed the appellant's fortune as the reason for the death of the respondent's father, which further led to ill treatment of the appellant at the hands of ______________Page No.2 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024the respondent and his family members.4. Out of the wedlock, the appellant got conceived during the month of April 2019. Due to the pressure exerted by the respondent upon the appellant to travel long distances, the pregnancy got aborted. Thereafter, the appellant got hospitalized and this caused a major rift between the parties. The appellant was subjected to further humiliation at the hands of the respondent. In the meanwhile, the appellant got conceived again. But the situations did not change the mind of the respondent. Even after multiple attempts made for reconciliation, the respondent ignored the appellant and also blocked her communication and failed to take care of the appellant.5. During January 2020, the respondent issued a legal notice for divorce. Thereafter, the appellant gave birth to a female baby, namely D.Mihira on 23.07.2020. Yet the respondent failed to take care of the appellant as well his daughter. The respondent filed a petition in F.C.O.P.No.109 of 2022 seeking divorce on the grounds of cruelty and the appellant in turn filed a petition in F.C.I.A.No.05/2023 seeking return of Sridhana articles, household articles, jewels and cash. On 07.08.2023, the Family Court, Ariyalur dissolved the marriage and partly allowed the petition filed by the appellant in F.C.I.A.No.05/2023, ordering the respondent to return 11 ¾ sov. of gold jewels. However, the appellant was also ordered to return 18 sov. of gold jewels to the respondent, which was not at all sought by the respondent in his petition.______________Page No.3 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 20246. The learned counsel for the appellant contended that the lower court erred in evaluating the scope and purpose of F.C.I.A.No.05/2023 under Section 27 of the Hindu Marriage Act, 1955. Even though the respondent did not file any application for the return of any items or jewels in his petition for divorce, the Court below has directed the appellant to return 18 sov. of gold jewels to the respondent, which is erroneous and beyond the scope of the respondent's pleadings.7. Moreover, the trial Court misinterpreted Exhibit P7. The said exhibit reflects a total of 8 sov. of gold jewels, with an expense of Rs.2,49,414/- and also the said exhibit P7 is a jewel exchange bill and not a bill denoting the purchase of new jewels. The Court below, erroneously interpreted Exhibit P7, which does not align with the facts and evidence on record. Therefore, the order directing the appellant to return 18 sov. of gold jewels is based on incorrect interpretation and the same needs the interference of this Court.8. The learned counsel relied on the following rulings of the Hon'ble Supreme Court:-(i) In the case of Messers.Trojan & Co Ltd. vs. Rm.N.N.Nagappa Chettiar, reported in 2022 Livelaw (SC) 638. The relevant paragraph is extracted hereunder:“....It is well settled that the decision of a case ______________Page No.4 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.”(ii) In the case of Bharat Amratlal Kothari & Anr. vs. Dosukhan Samdkhan Sindhi & ors, held:“...Though the court has very vide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.” 9. To wrap up, the learned counsel for the appellant submitted that the respondent left the appellant to raise his daughter without any financial and moral support, thereby striving hard for the appellant to make the ends meet. The respondent has not shown any interest towards his daughter and his neglect has created emotional and financial repercussions on the appellant as well as his daughter. The learned counsel also contended that the appellant is ready and willing to unite with the respondent, for the well being of their daughter. Therefore, the learned counsel for the appellant prays to setaside the order of divorce granted by the Court below in F.C.O.P.No.109 of 2022 and restore the original claim of the appellant for the return of Sridhana articles, household articles, jewels and cash, thereby allowing the present civil miscellaneous appeal.10. Conversely, the learned counsel appearing for the respondent ______________Page No.5 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024made the following submissions:-(i) The fact that, the appellant and the respondent are married and out of the wedlock, they have a daughter named D.Mihira is not in dispute. According to the learned counsel for the respondent, initially when the appellant got conceived during the month of April 2019, it was found that the baby in the womb did not have a heart beat and only upon the advice of the doctors, the pregnancy was aborted. Even when the respondent advised the appellant not to travel, the appellant has gone to her parents' house on her own will and against medical advice.(ii) The learned counsel also submitted that the appellant has insisted the respondent to attend the engagement function of her sister. Due to his office work, the respondent was not able to attend the said ceremony, for which, the appellant had kept calling the husband more than 300 times, thereby preventing him to attend his office work. In the middle of the night, the appellant has threatened that she was going to commit suicide by leaving a note that the respondent is the cause of her death, which is a clear case of cruelty against the respondent and his family members.(iii) Further, the learned counsel for the respondent contended that the appellant was habitually threatening the respondent of committing suicide. The appellant's family members, comprising of 20 members, threatened the respondent that he should immediately resolve the matrimonial issue and live with the appellant. In this connection, the respondent filed a police complaint against the family members of the ______________Page No.6 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024appellant and also his wife for threatening the respondent of committing suicide.(iv) Finding it impossible to led a normal life, the respondent filed a petition seeking divorce in F.C.O.P. No.109/2022 before the Family Court, Ariyalur. The learned Judge, after perusing the materials submitted and considering the submissions made, allowed the petition, thereby dissolving the marriage between the parties, which is a well reasoned order. Hence, the learned counsel prayed for dismissing the appeal.11. Heard the learned counsel appearing for the appellant as well as the respondent and perused the materials placed before this Court.12. Before the trial court, the respondent examined himself as P.W.1, while the appellant examined himself as R.W.1. And 6 other witnesses. On the side of the respondent, Exs.P~1 to P~32 were marked and on the side of the appellant Exs.R~1 to R~19 were marked. The trial court, considering the oral and documentary evidence, allowed the petition, thereby dissolving the marriage held between the appellant and the respondent and further partly allowed the petition filed by the appellant, directing the husband to return 11 ¾ sov of gold jewels to the wife and also directed the wife to return 18 ½ sov of gold jewels to the husband, within a period of three months. 13. Perusal of records reveals that Exhibit P-17 – call log details of the respondent, shows that the appellant has called the respondent more than 300 times over the mobile phone, preventing him from doing his ______________Page No.7 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024office work, which proves the abnormal behaviour of the appellant. Moreover, Ex.P.18 – pen drive holding the voice recording of the appellant, wherein it contains the threatening made by the respondent that she would commit suicide, clearly establishes the act of mental cruelty caused by the appellant against the respondent. 14. This Court also transpires from the materials produced, that eventhough a police complaint against the respondent/husband was given by the appellant/wife, alleging dowry harassment, there was no proof of demand of dowry submitted by the appellant to substantiate her case and therefore, it is a vexatious complaint given by the appellant, only with an intention to cause mental cruelty and harass the respondent. In the considered opinion of this Court, the trial Court has rightly considered the exhibits and has rightly ordered the petition, thereby dissolving the marriage.15. Further examination of the exhibits before the trial Court would reveal that the appellant failed to substantiate her averments made in the written statement in the trial by letting in any evidence, particularly with regard to the averment that the respondent's sister plunged the gold Thali chain from the appellant on 04.12.2019. If such statement is true, then the appellant would have lodged a complaint in the police station soon after the occurrence against the respondent's sister, which did not take place in the present case. Moreover, Exhibit P.7. pertains to the copy of the receipt ______________Page No.8 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024of purchase of 18 sov. of gold jewels at Sri Valli Vilas, Cuddalore by the respondent to the appellant. When the appellant declines the possession of the aforesaid jewels, burden of proof lies on the appellant to prove that she is not in possession of the gold jewels purchased by the respondent. Since the statement made by the appellant was not substantiated with proper evidence, the Court below held that it cannot look into the matter without any documentary proof in respect of jewels, which this Court finds no infirmity or illegality to interfere with.16. Unsubstantiated allegations levelled by the appellant/ wife against the respondent/husband and the threats and attempt to commit suicide by her amounts to mental cruelty and therefore, the marriage between the appellant and the respondent deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Hindu Marriage Act, 1955. Therefore, this Court finds no infirmity or illegality in the order passed by the trial Court in F.C.O.P.No.109/2022 and F.C.I.A.No.05/2023 dated 07.08.2023 and the same stands confirmed, thereby confirming the decree of divorce granted by the Family Court, dissolving the marriage that was solemnized between the appellant and the respondent.17. With these observations, this Civil Miscellaneous Appeal ______________Page No.9 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. [J.N.B., J.] [R.S.V., J.]29.04.2025 Index : Yes / NoNeutral Citation: Yes / No Speaking Order : Yes / NostsTo:The Family Court Judge, Ariyalur.J.NISHA BANU, J.ANDR.SAKTHIVEL, J.sts ______________Page No.10 of 11 https://www.mhc.tn.gov.in/judis C.M.A No.940 of 2024 Judgment made inC.M.A No.940 of 2024Dated:29.04.2025______________Page No.11 of 11