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2018 DIGILAW 3177 (MAD)

Jerina v. Koilraj

2018-09-24

V.M.VELUMANI

body2018
JUDGMENT V.M. Velumani, J. These Civil Miscellaneous Appeals are filed against the common Order dated 30.11.2012, passed in DOP. No. 79 of 2011 and DOP. No. 8 of 2012, on the file of the learned Principal District Judge, Thoothukudi. 2. The appellant in both the appeals is wife and the respondent is the husband. Hereinafter, the parties are referred to as "husband" and "wife". 3. The petition in DOP No.79 of 2011 filed by the husband against wife for restitution of conjugal rights under Section 32 of Divorce Act and DOP.No.8 of 2012 filed by the wife against the husband under Section 10(1)(x) of Divorce Act, for dissolution of marriage held on 29.12.2005. DOP.No.79 of 2011 filed by husband for restitution of conjugal rights was allowed and DOP.No.8 of 2012 filed by wife for divorce was dismissed by the common order. Against the order of allowing the DOP.No.79 of 2011 and dismissal of DOP.No. 8 of 2012, the wife has come out with present two Civil Miscellaneous Appeals. 4. The parties are one and the same and the issues are interlinked and therefore, both the appeals are disposed of by this common Judgment. 5. The case of the husband in both the DOPs is that they got married on 29.12.2005 at C.S.I. St. John Church as per Christian Rites and Customs. As per the request of the father of the wife, the husband was living with the wife in her parents house. He shifted his cycle repair shop from his native place to wife's place. His father-in-law purchased certain tools for cycle repair shop. The brother of the wife, being dissatisfied with his father for establishing the cycle shop for husband came with his henchmen and assaulted the husband. The father of the wife did not object to the same. The husband left the native place of wife and went to his place. He called upon the wife to join him in the matrimonial home at his native place. But, the wife refused to join and informed that if her parents permit, she will join with him in his native place. The husband has given a complaint to the police and District Collector. The police after enquiry, advised the parties to approach the competent Court to get redressel of their grievance. The husband also sent a letter to his father-in-law to send his wife to the matrimonial home. The husband has given a complaint to the police and District Collector. The police after enquiry, advised the parties to approach the competent Court to get redressel of their grievance. The husband also sent a letter to his father-in-law to send his wife to the matrimonial home. The wife did not join with him in the matrimonial home. Hence, he has filed DOP.No.79 of 2011, for restitution of conjugal rights. 6. The case of the wife in both the DOPs is that the even before the marriage, it was made clear to the husband that he must come and live along with her at wife's parents' house as there is nobody to take care of her parents. Husband and his parents agreed for the same and then only, the marriage was celebrated. From the date of marriage, the husband was ill- treating his wife and informed her that she is not match for him and he married her only for her money. He demanded more money as dowry as well as the motorcycle. Without informing anybody, the husband left the matrimonial home in the month of January 2007 and returned after few days. The husband and his parents did not come and see the male child born in the wedlock on 07.02.2007. The husband is treating her cruelly and abusing her in filthy language. The wife did not give any complaint against the husband as she was hoping that husband would change his mind and live in normal happy life. If restitution of conjugal rights is ordered and if she goes to native place of husband there is a life threat to her. Hence, she filed DOP.No.8 of 2012. 7. Both the DOPs are taken up for joint trial and common evidence was recorded. Before the Trial Court, the husband examined himself as PW.1 and on his behalf, four documents were marked as Exs.P1 to P4. The wife examined herself as RW.1 and on her behalf two documents were marked as Exs.R1 and R2. 8. The learned Judge considering the pleadings oral and documentary evidence, allowed DOP.No.79 of 2011, filed by the husband, for restitution of conjugal rights and dismissed DOP.No.8 of 2012 filed by wife, for divorce. 9. Against the said common order, the wife has come out with the present two appeals. 10. 8. The learned Judge considering the pleadings oral and documentary evidence, allowed DOP.No.79 of 2011, filed by the husband, for restitution of conjugal rights and dismissed DOP.No.8 of 2012 filed by wife, for divorce. 9. Against the said common order, the wife has come out with the present two appeals. 10. Though notice was served on the respondent/husband and his name is also printed in the cause list, there is no representation on behalf of the respondent either in person or through counsel. 11. The learned counsel appearing for the appellant reiterated the averments in the counter filed in DOP.No.79 of 2011 and the averments in the petition DOP.No.8 of 2012. He has also contended that the learned Judge erred in giving importance to the fact that the wife did not give any complaint against the husband, for dowry harassment and did not take any legal proceedings. The learned Judge failed to see that admittedly, the husband agreed to live with the respondent in her native place along with her parents, as there is nobody to take care of her parents. The matrimonial home is native place of wife and it is only the husband, who deserted her and went to his native place. The wife has deposed as RW.1 and proved dowry harassment by husband. 12. I have heard the learned counsel appearing for the appellant and perused the materials available on record. 13. The reason for seeking divorce by the wife is that the husband treated her cruelly from first day of marriage itself and abused her in filthy language. In addition to that, she has stated that the husband demanded more dowry and demanded motorcycle. The wife has not given any complaint against the husband with regard to dowry harassment either to police or initiate any proceedings in the Court of law especially, when the husband has given complaint against the wife to the police and to the District Collector. The husband also sent a letter to his father-in-law to send his wife to his native place. Even then, the wife or her father did not send any reply alleging dowry harassment and cruelty by the husband and did not file any complaint to prove the said contention. The learned Judge has considered the above facts in proper perspective and held that the wife failed to prove the cruelty and dowry harassment as alleged by her. Even then, the wife or her father did not send any reply alleging dowry harassment and cruelty by the husband and did not file any complaint to prove the said contention. The learned Judge has considered the above facts in proper perspective and held that the wife failed to prove the cruelty and dowry harassment as alleged by her. The husband has stated that during enquiry, on the petition sent to the District Collector, the wife stated that she would join with him in his native place, if her parents permit. In the counter statement filed by the husband, he has stated that the wife has filed petition only at the instigation of her parents. The wife has not examined her father to deny such allegation. 14. In such circumstances, the learned Judge has rightly allowed DOP.No.79 of 2011 filed by the husband, for restitution of conjugal rights and dismissed DOP.No.8 of 2012 filed by the wife for divorce. The learned Judge has exercised his power conferred on him properly and there is no error warranting interference by this Court. 15. In the result, these Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.