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2018 DIGILAW 3251 (MAD)

Mary Fancy Kala v. Sahaya Raj

2018-09-26

V.M.VELUMANI

body2018
JUDGMENT V.M. Velumani, J. This Civil Miscellaneous Appeal has been filed to set aside the award made in I.D.O.P.No.8 of 2018 on the file of the District Judge, Family Court, Kanyakumari at Nagercoil, dated 11.05.2018. 2. The appellant/wife is the respondent in I.D.O.P.No.8 of 2018. The respondent/husband filed I.D.O.P. No. 429 of 2015 on the file of the District Judge, Family Court, Kanyakumari at Nagercoil, and the same was renumbered as I.D.O.P.No.8 of 2018. 3. According to the respondent, he got married on 25.04.2000 at Holy Family Church, Carmel Nager, Nagercoil, as per Christian rites and customs. The respondent is a fisherman and was working in abroad as fisherman at the time of marriage. The respondent and his parents did not demand and receive any dowry and jewelry, as the respondent was earning well and the appellant's family was poor. The respondent has sent his earnings to the appellant and given gold and diamond jewels to the appellant. He has also purchased five cents of lands in the name of appellant, due to love and affection towards the appellant. The respondent found that the appellant was having illicit relationship with her lady neighbor, namely, Jeni and because of her relationship, the attitude of the appellant has changed. The appellant has left on 25.05.2014 from the matrimonial home, when the respondent has requested her not to have relationship with the said Jeni. The respondent gave a complaint to All Women Police Station, Kanyakumari. The respondent took steps personally and through elders for rejoining, but the appellant has refused, hence, he filed a petition for restitution of conjugal rights. 4. The appellant filed counter statement by denying all the allegations of the respondent. According to the appellant, at the time of marriage, the respondent received 42 sovereigns gold jewels for the appellant and 8 sovereigns gold jewels for him and a sum of Rs. 1,00,000/- (Rupees One Lakh Only) in cash. The appellant's parents have also provided some articles for the family, worth about Rs. 1,00,000/-. From the date of marriage, the respondent used to get drunk and treat the appellant cruelly. He used to force the appellant to consume alcohol and if the appellant refused to comply with the same, the respondent would beat and kick her. He was earlier, having illicit relationship with one Rossy and also with Jeni. 1,00,000/-. From the date of marriage, the respondent used to get drunk and treat the appellant cruelly. He used to force the appellant to consume alcohol and if the appellant refused to comply with the same, the respondent would beat and kick her. He was earlier, having illicit relationship with one Rossy and also with Jeni. On 10.07.2014, the respondent and his family members assaulted the appellant and thrown her out from the matrimonial home. On 25.09.2014, the respondent and his family members came to the house of the appellant and demanded a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) as dowry and if the appellant fails to pay the said amount, they will get the respondent to marry with some other girl, and if the appellant prevents the said marriage, they will kill the appellant and children. The appellant gave a complaint to the Superintendent of Police, Kanyakumari District, on 25.09.2014 and it was registered as C.S.R.No.295 of 2014. The respondent and his family members did not attend the enquiry. On the other hand, he gave a false complaint against the appellant. The respondent also went to the school, where the children of the parties are studying and threatened to kill them and prayed for dismissal of the petition. 5. Based on the pleadings, the learned District Judge, Family Court, Kanyakumari at Nagercoil, framed necessary point for consideration. 6. Before the learned District Judge, Family Court, Kanyakumari at Nagercoil, the appellant herself examined as R.W.1 and marked eight documents as Exs.R.1 to R.8. The respondent himself examined as P.W.1 marked three documents as Exs.P.1 to P.3. 7. The learned District Judge, Family Court, Kanyakumari at Nagercoil, considering the pleadings, both oral and documentary evidence, held that the appellant failed to prove the cruelty and that she is living separately from the respondent for reasonable cause and allowed I.D.O.P.No.8 of 2018. 8. Against the said order, the present Civil Miscellaneous Appeal is filed by the appellant/wife. 9. The learned counsel appearing for the appellant contended that the learned Judge failed to consider the oral evidence let in by the appellant in proper perspective. The appellant has given two complaints against the respondent on 25.09.2014 and 14.10.2014, which would prove that the respondent has harassed the appellant for dowry and the contention of the appellant is believable. 9. The learned counsel appearing for the appellant contended that the learned Judge failed to consider the oral evidence let in by the appellant in proper perspective. The appellant has given two complaints against the respondent on 25.09.2014 and 14.10.2014, which would prove that the respondent has harassed the appellant for dowry and the contention of the appellant is believable. The appellant did not leave the matrimonial home voluntarily, she was thrown out by the respondent and his family members by demanding more money. The respondent and his family members forced the appellant to execute a sale deed in favour of the respondent to satisfy demand of dowry. The respondent is alcoholic addict and used to torture the appellant under the influence of alcohol. The respondent is having illicit relationship with one Jeni. The respondent was working in Saudi Arabia and used to come once in 1+years and therefore, the respondent cannot claim desertion by the appellant. 10. Per contra, the learned counsel for the respondent contended that the respondent or his family members never demanded any dowry from the appellant or the appellant's parents. On the other hand, the respondent used to send money to the appellant and to prove the same, the respondent has marked passbook as Ex.A3. The father of the appellant did not execute a sale deed on 03.06.2004, as the respondent and his family members demanded more money. On the other hand, the respondent has paid to the appellant and her family members and for consideration only, the appellant's father executed a sale deed. The appellant has left the matrimonial home without any reasonable cause and falsely contends that she was thrown out from the matrimonial home and prayed for dismissal of the appeal. 11. Heard the learned counsel appearing for the appellant and the respondent and perused the materials available on record. 12. The point for consideration in the appeal is, whether the appellant is residing separately away from the matrimonial home for reasonable cause. 13. From the materials on record and contention of the parties, it is admitted that the appellant and the respondent are living separately. According to the respondent, the appellant left matrimonial home voluntarily on 25.05.2014. On the other hand, it is the contention of the learned counsel for the appellant that she was thrown out from matrimonial home on 10.07.2014, demanding more dowry. According to the respondent, the appellant left matrimonial home voluntarily on 25.05.2014. On the other hand, it is the contention of the learned counsel for the appellant that she was thrown out from matrimonial home on 10.07.2014, demanding more dowry. The respondent has stated in the petition that he tried through family members and elders to bring the appellant to live with him in the matrimonial home. The appellant has not denied the said contention. Further, it is the respondent, who gave complaint first against the appellant for restitution of conjugal rights. The appellant in the cross-examination, admitted that she was having illicit relationship with the said Jeni and the police advised her to live with the respondent. The appellant has alleged demand of dowry and cruelty against the respondent and his family members, she has given complaint to the police and filed petition for maintenance for herself and children and the respondent in the cross-examination, admitted that this Court ordered payment of Rs. 10,000/- (Rupees Ten Thousand Only) per month towards maintenance to the appellant and the children. The respondent also in the cross-examination, stated that he is having sufficient money for the benefit of medical expenses to the children. The appellant even though alleges cruelty and demand of dowry against the respondent, she has not filed any petition for dissolution of marriage. In such circumstances, it cannot be said that the appellant is living separately from the matrimonial home for reasonable cause. 14. The learned District Judge, Family Court, Nagercoil, considering the pleadings, both the oral and documentary evidence let in by both the parties, concluded that the appellant has failed to prove that she is residing separately from the respondent for reasonable cause. The learned Judge has given cogent and valid reason for the said conclusion and there is no error in the said conclusion. Therefore, there is no reason warranting interference by this Court. 15. In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.