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2019 DIGILAW 1711 (MAD)

T. Kullayappa v. T. Lakshmi Devi

2019-06-20

T.S.SIVAGNANAM, V.BHAVANI SUBBAROYAN

body2019
ORDER : (Prayer: Civil Miscellaneous Appeals have been filed under Section 19 of the Family Court's Act against the common fair and decreetal orders dated 19.02.2018 passed in O.P.Nos.3061 of 2012 and 5 of 2014 by the Principal Judge, Principal Family Court, Chennai.) 1. The above two Civil Miscellaneous Appeals filed under Section 19 of Family Court's Act are arising out of a common judgment and decree dated 09.02.2018 made in O.P.Ns.3061 of 2012 and O.P.No. 5 of 2014 respectively. 2. The brief facts leading to the present appeals are that the respondent herein, who is none other than the wife of the appellant herein, after 43 years of marital life with the appellant herein, had filed O.P.No.3061 of 2012 before the Principal Family Court at Chennai for a decree of divorce on the ground of cruelty under Section 13(1) of Hindu Marriage Act and blames that they got married on 05.06.1969 and due to their wedlock, a female child named Hemalatha was born on 31.10.1970 and the said daughter Hemalatha was married to one L. Ramalingam, who had jointly purchased a property, where the appellant and the respondent are residing and constructed a residential building having ground and first floor, in which the appellant/husband and the respondent/wife are residing in the first floor rear portion and the daughter and son-in-law along with their 17 years old grand-daughter are residing in the front portion of the building. 3. Whileso, when O.P.No.3061 of 2012 filed by the respondent/wife was pending, the appellant/husband had filed O.P.No.5 of 2014, before the Family Court, under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights on the ground that the respondent herein and his daughter have completely deserted the appellant and the appellant is not in good health and he was almost 71 years old when he filed restitution of conjugal rights petition. 4. The Principal Judge, Family Court at Chennai, by a common judgment and decree, dated 19.02.2018, allowed O.P.No.3061 of 2012 by dissolving the marriage solemnized on 05.06.1969 and granted a decree of divorce on the ground of cruelty and dismissed O.P.No.5 of 2014 filed by the appellant/ husband for restitution of conjugal rights. As against the order of divorce granted in O.P.No.3061 of 2012, CMA.No.2362 of 2019 is filed and as against the dismissal of O.P.No.5 of 2014, CMA.No.2363 of 2019 is filed. 5. Heard Mr. As against the order of divorce granted in O.P.No.3061 of 2012, CMA.No.2362 of 2019 is filed and as against the dismissal of O.P.No.5 of 2014, CMA.No.2363 of 2019 is filed. 5. Heard Mr. M. Chidambaram, learned counsel appearing for the appellant/husband and Mrs. Bala & Daisy, learned counsel appearing for the respondent/wife and perused the materials available on record. 6. The learned counsel appearing for the appellant/ husband would submit that while allowing the divorce O.P. filed by the respondent/wife, the Family Court failed to consider that the burden of proof is on the respondent/wife to prove the alleged cruelty by the appellant/husband and the wife is merely making statement of allegation of cruelty and failed to prove the alleged cruelty as stated in her petition. The learned counsel has also pointed out to the Court that the appellant and the respondent having lived together from 1969 to 2012 ie., almost 45 years, but the respondent/wife had chosen to file divorce O.P. only in the year 2012, that too, when the respondent/wife was almost 60 years and the appellant/husband was 71 years old. The age factor of the appellant as well as respondent was not considered by the Family Court while granting divorce and while dismissing the petition for restitution of conjugal rights. 7. On the other hand, the respondent's counsel Mrs. Bala & Daisy vehemently contended that the appellant/husband throughout his life time, after the marriage with the respondent/wife has committed various kinds of torture especially for almost 45 years, the respondent/wife was manhandled by the appellant/husband. The wife tolerated the husband's behaviour for almost 45 years only for the reason that their daughter's life should not be spoiled, as she being the only daughter she was tolerating all the untold miseries underwent at the hands of appellant/husband and hence, prayed to sustain the order passed by the Principal Family Court. 8. It is an unfortunate case, where the husband and wife, who had lived for 45 years together, have approached this Court, one person seeking for dissolution of marriage and another person seeking for restitution of conjugal rights. 8. It is an unfortunate case, where the husband and wife, who had lived for 45 years together, have approached this Court, one person seeking for dissolution of marriage and another person seeking for restitution of conjugal rights. On perusal of the judgment rendered by the Principal Family Court, Chennai and the respective petitions filed by the parties and their depositions, it is clear that the wife had made several brutal allegations as against the husband and sought for dissolution of their marriage, that took place on 05.06.1969 and that too, after living together for almost 45 years. At the time of filing divorce petition, the appellant and the respondent had a 17 years old grand-daughter and by now, when the present appeals are taken up, she should be 24 years old. 9. In the affidavit filed in support of the divorce petition filed before the Family Court, the respondent/wife stated that just before the filing of O.P.No.3061 of 2012, i.e., in June 2012, the appellant/husband threatened to kill her if she does not earn money for his living expenses and his brother's family's living expenses and forced her to surrender all the investments, which stood in the name of the respondent/wife. Factually this is an imminent preceding ground for the respondent/wife to approach the Family Court seeking for dissolution of marriage. Apart from several other incidents, it is stated by the wife, in a nutshell at para-6 of the divorce petition, which reads as follows: “6. Factually this is an imminent preceding ground for the respondent/wife to approach the Family Court seeking for dissolution of marriage. Apart from several other incidents, it is stated by the wife, in a nutshell at para-6 of the divorce petition, which reads as follows: “6. The petitioner submits that throughout her lifetime, she has undergone various kinds of torture like being beaten very often, head banged against walls, head banged against moving parts of grinder, several times hit on head with thick wooden sticks, attacked with nails and teeth, bitten most severely on several occasions, threatened to kill her if she did not comply to respondents unruly behaviour, many times pushed out of the house, several times asked to go and earn money, several times beaten and taken her jewellery to perform respondent's sisters weddings, several times beaten to grab her jewellery to meet the living expenses of respondent's brothers and sisters, several times pushed petitioner out of the house middle of the night asking petitioner to go to her mother's place and bring more money and gold, the respondent several times has threatened and beat the petitioner to convince petitioner's younger sister for a second marriage with the respondent, several times hit petitioner's daughter to earn money at young age to meet living expenses of respondent's brothers and sisters in the past. Respondent has not been allowing any of petitioner's relatives to visit her for the past 40 years.” 10. The respondent/wife examined herself as PW.1 and marked Ex.P1 and P2, the marriage photo and copy of the Family Card respectively. Interestingly, the learned Judge, while passing judgment and decree has merely culled down the statements of averments made by the respondent/wife in her petition seeking dissolution of marriage. The discussions by the learned Principal Family Judge to allow O.P.No.3061 of 2012 are as hereunder:- “The evidence let in by both parties is perused carefully. The cross of PW.1 reveals that the petitioner has reiterated the averments of cruelty repeatedly. But clinchingly, a question has been put to the petitioner stating the respondent wants to forget the past and wants to live with the petitioner. The relevant portions are extracted hereunder: “LANGUAGE” The above evidence gives an inference that the petitioner is unable to live with the respondent even after the advice by the Police. She has stated that she is unable to bear the tortures of the respondent. The relevant portions are extracted hereunder: “LANGUAGE” The above evidence gives an inference that the petitioner is unable to live with the respondent even after the advice by the Police. She has stated that she is unable to bear the tortures of the respondent. But the above averment has not been retaliated by the respondent during cross examination. It is also pertinent to point out that the respondent has claimed that he wants to forget the past and to live happily. The term “forget the past” gives an inference such that some bad memories were to be forgotten. Impliedly, it is understood that there had been a conflict and difference of opinion between both, which has given the tendency to forget the past. Other than that the cross of PW.1 has not yielded anything in favour of the respondent.” 11. On perusal of above discussions by the Principal Judge, Family Court, it is clear that the oral evidence adduced by the respondent/wife has to be read against her and not in her favour. What is stated by the appellant/husband in his petition filed for restitution of conjugal rights in O.P.No.5 of 2014 coincides with the oral evidence of the respondent/wife, which are extracted hereunder:- “LANGUAGE” 12. However this particular statement of the respondent/wife, wherein the appellant/husband had claimed that the respondent/wife and his daughter had deserted him, which forced him to file the petition for restitution of conjugal rights in O.P.No.5 of 2014. The Principal Judge, Family Court, merely accepting the statements made by the respondent/wife, had made inference as against the appellant/husband. It is very uncommon for a Family Court Judge to grant a divorce merely based on the averments made in the petition. In fact, to come to a conclusion for cruelty, the Principal Family Court Judge had extracted a term “forget the past” used by the appellant/ husband in his petition. The Family Court Judge, due to inference from this term to alleged cruelty as against the appellant/husband as an acceptance of the cruelty committed by the appellant/husband. In fact, to come to a conclusion for cruelty, the Principal Family Court Judge had extracted a term “forget the past” used by the appellant/ husband in his petition. The Family Court Judge, due to inference from this term to alleged cruelty as against the appellant/husband as an acceptance of the cruelty committed by the appellant/husband. Though the appellant/husband has not filed any proof to support his case of restitution, the oral evidence rendered by the respondent/wife, who had accepted in her cross examination that she has deserted her husband for the last four years and she cannot take care of her husband and she is living in the daughter's house always, the learned Judge ought to have drawn inference in favour of the appellant/husband from the statement made by the respondent/wife when she herself accepted that she always resides in her daughter's house and not taken care of the husband. However, the learned Judge, to allow the divorce petition filed by the respondent/wife, has erroneously misconceived the evidence, which is liable to be set aside. 13. While handling Family Court issues, the Family Court should always keep in mind the age of the parties, who are approaching the Family Court. Mere statements made in the petition filed by parties are not sufficient to dissolve the marriage, without there being any materials on record. As far as the present case on hand is concerned, it is very unfortunate that a husband and wife, who had spent their life together for more than 45 years, are before this Court. When the husband is now 75 years old and the wife is 67 years old, having lived 75% of their life together, it is very unfortunate that one party has approached the Court seeking for dissolution of marriage that too, deserting her age old husband, who needs care. The Family Court ought to have seen the plight of 75 years old man, who without being supported by his own wife and only daughter, who are the family members, that too, when the husband pleads to the Court that he had spent all his earnings towards the purchase of the plot in which his wife and daughter, along with his son-in-law and grand-daughter are living and he has been thrown out of the house. No parent, while investing in properties purchased in the name of daughter or wife at the time of purchase, keeps evidences foreseeing future problems. Even otherwise, it is bounden duty of the daughter to take care of her age old father and mother and she cannot pick and choose between the father and mother, leaving and deserting her father, that too, she being the only child. Nothing prevented the daughter, who stays with her mother, respondent herein, to depose in favour of her mother, had the allegations of the respondent wife is true. In fact, this fact has also not been taken care or taken into consideration by the Principal Judge, Family Court, while considering the case of the wife and allowing the petition filed for dissolving the marriage. Under these circumstances, We are of the view that the judgment and decree passed by the Principal Family Court Judge in O.P.No.3061 of 2012 and O.P.No.5 of 2014 dated 09.02.2018 need to be interfered. 14. Accordingly, both Civil Miscellaneous Appeals are allowed. The common order and decreetal order passed by the Principal Judge, Family Court, Chennai, in O.P.No.3061 of 2012 and O.P.No.5 of 2014 dated 09.02.2018 are set aside and O.P.No.3061 of 2012 filed for dissolution of marriage is dismissed and O.P.No.5 of 2014 filed for restitution of conjugal rights is allowed. No costs.