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2011 DIGILAW 2925 (MAD)

P. Natarajan v. Mala @ Lakshmi

2011-06-22

ELIPE DHARMA RAO, M.VENUGOPAL

body2011
JUDGMENT :- M.VENUGOPAL, J 1. The Appellant/Respondent/husband has preferred the present Civil Miscellaneous Appeal as against the order dated 5.10.2007 in FCOP No.155/2003 on the file of the Family Court, Salem. 2. The Respondent/Petitioner (wife) has filed FCOP No.155/2003 before the Family Court, Salem praying for Restitution of Conjugal Rights as per Section 9 of the Hindu Marriage Act. 3. The marriage between the Appellant/husband and the Respondent/wife took place on 4.7.1987 at Paraikat, Salem at the residence of the Appellant. It is the case of the Respondent/wife that at the time of marriage, she was given four sovereigns of gold chain, one Thodu, Jimiki, Golusu, Rs.10,000/- cash and also other Seervarisai Articles. The Appellant/husband at the time of marriage was given half sovereign of gold Ring by the parents of the Respondent/wife. Out of the wedlock between the parties, no child was born to them. 4. The Appellant/husband was reported to have got married to one Saradha for the second time. At that time the Respondent/wife was taken to Ammapet and she was threatened to sign in a blank paper by the Appellant/husband. Thereafter, the Appellant/husband drove away the Respondent/wife to her parents house. According to the Respondent/wife the Appellant/husband had performed second marriage without obtaining divorce through Court of law, which is an offence. The Respondent/wife is willing to live with the Appellant/husband. Hence, she had filed the petition for Restitution of Conjugal Rights. 5. It is the case of the Appellant/Respondent (husband) that he obtained divorce on 30.5.2001 from the Respondent/wife as per the caste custom and on the same day, both the parties had obtained divorce and they had written a document. At the time of writing the document of divorce the Respondent/wife has received a sum of Rs.50,000/-from the Appellant/husband towards her life maintenance. She took her articles and cash and went along with one Selvam. On 30.5.2001 the Respondent/wife wrote a release deed in favour of her father and brothers and in that document the Respondent/wife's second husband one Selvam had signed as a witness. When a complaint dated 25.5.2001 was given at Ammapet Police Station by the Appellant/husband as regards the elopement of his wife viz., Respondent along with one Selvam and when his wife was enquired into by the police, she informed that Selvam is her husband. When a complaint dated 25.5.2001 was given at Ammapet Police Station by the Appellant/husband as regards the elopement of his wife viz., Respondent along with one Selvam and when his wife was enquired into by the police, she informed that Selvam is her husband. Since the Appellant/husband had obtained divorce deed, the petition for Restitution of Conjugal Rights filed by the wife is to be dismissed. 6. The trial Court examined three witnesses on the side of the Respondent/wife as P.W.1 to P.W.3 and Exs.P1 to P3 were marked. On the side of the Appellant/husband three witnesses were examined as R.W.1 to R.W.3 and Exs. R1 to R5 were marked. The trial Court on appreciation of the oral and documentary evidences available on record, merely relying upon Ex.R3 dated 30.5.2001-deed of Muchalika for divorce between the Appellant/husband and the Respondent/wife, had come to the conclusion to the effect that the Appellant/husband had not pursued the matter for obtaining divorce through competent Court of law and therefore on an analysis of the oral evidence tendered by the parties and also on a careful scrutiny of the documents, it had come to the resultant conclusion that the petition for restitution of conjugal rights filed by the wife is to be allowed and accordingly, allowed the Petition for Restitution of Conjugal Rights. 7. It is the discretion of the Court whether or not based on the facts and circumstances of the case to pass a Decree for Restitution of Conjugal Rights. Before granting any decree for Restitution of Conjugal Rights the conduct of parties to the proceedings will be taken into account by the Court. 8. In a Petition filed under Section 9 of Hindu Marriage Act 1955, a Court of law has to determine in case of Controversy/Dispute whether the relationship of Husband and wife exists between the parties and then to proceed to find out whether it is a fit case for passing a decree for Restitution of Conjugal Rights. 9. It is to be noted that in a Petition for Restitution of Conjugal Rights, the Petition must establish his or her sincerity and has a bona fide desire to resume matrimonial cohabitation and to render the rights and duties of such cohabitation, as per decision B.R.Sayal (Captain) V. Smt.Ram Sayal ( AIR 1968 P&H 489 ). 10. 9. It is to be noted that in a Petition for Restitution of Conjugal Rights, the Petition must establish his or her sincerity and has a bona fide desire to resume matrimonial cohabitation and to render the rights and duties of such cohabitation, as per decision B.R.Sayal (Captain) V. Smt.Ram Sayal ( AIR 1968 P&H 489 ). 10. Also, by virtue of Explanation to Section 9 of Hindu Marriage Act, 1955, the early onus to prove the pleading is on the Petitioner in a Petition under Section 9 of the Act. 11. It is not in dispute that Ex.R3 was written between the parties which is nothing but a Divorce Deed. Further the Respondent/ wife took a sum of Rs.50,000/- from the Appellant/husband towards her life maintenance. The Appellant/husband in pursuance of Ex.R3 Divorce Deed had not taken steps to obtain Divorce through Court of Law. Nevertheless, the fact remains after the execution of Ex.R3 Divorce Deed dated 30.5.2001 the Respondent/wife went along with one Selvam and also expressed categorically before the Ammapet Police Station that Selvam is her husband. Therefore, it is quite clear even though the marriage between the parties had taken place on 4.7.1987 the fact remains that they got separated by virtue of Ex.R3 Divorce Deed dated 30.5.2001. Further, the Respondent/wife is living with one Selvam and she also categorically stated before the Ammapet Police Station that Selvam is her husband. Moreover, the Appellant/ husband had married one Saradha (for the second time) and is living with her. Therefore, we are of the considered view that since the Respondent/wife is living with one Selvam as her husband and no longer living with the Appellant/husband, after execution of Ex.R3 Divorce Deed dated 30.5.2001, we are inclined to allow this appeal since the trial Court has erroneously allowed the Original Petition filed by Respondent/wife praying for Restitution of Conjugal Rights. Accordingly, we set aside the order passed by the Family Court, Salem in FCOP No.155/2003 dated 5.10.2007 leaving the parties to bear their own costs. 12. In the result, this Civil Miscellaneous Appeal is allowed, leaving the parties to bear their own costs. The Order dated 5.10.2007 passed in FCOP No.155/2003 by the Family Court, Salem is set aside. Resultantly, the FCOP No.155/2003 on the file of Family Court, Salem is dismissed.