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2021 DIGILAW 3395 (MAD)

Jegadeeswari D/o Thulasingam v. D. Iyyappan

2021-12-02

D.BHARATHA CHAKRAVARTHY, T.RAJA

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JUDGMENT : T.Raja, J. Ms.Jegadeeswari, D/o Thulasingam has filed these two civil miscellaneous appeals, one appeal against the order passed in O.P.No.3502 of 2014 granting restitution of conjugal rights in favour of Mr.D.Iyyappan, the respondent herein and another appeal against the order passed in O.P.No.4529 of 2013 refusing the prayer of the appellant to dissolve the marriage solemnized between the appellant and the respondent on 27.7.2011 at Vaitheeswaran temple which was registered on 1.8.2011 at the Registrar Office, Royapuram, Chennai on the ground of both mental and physical cruelty by the respondent against the appellant. Therefore, both the appeals are taken up together and disposed of by this common judgment. 2. Mr.D.Rajagopal, learned counsel appearing for the appellant argued that when the appellant was pursuing her final year B.C.A., course in the Prof.Dhanapalan College, she used to board the college bus near Sadasivam Nagar bus stand at Madipakkam and invariably the respondent was accosting her way to the said college bus stop and while she used to return back from the college also, the respondent was making all sorts of attempts to woo and solicit her. But the appellant was avoiding all the attempts of the respondent and also warned him on several occasions to keep away from her. While so, on 21.7.2011, when the respondent tried to accost the appellant at the above said bus stand, fortunately the relatives of the appellant caught hold of the respondent and warned him with a specific request not to chase her any more. In spite of the said warning, the respondent was mindless to the consequences that their lives would be put to risk and danger. At about 7.15 AM on 25.7.2011, when the appellant was waiting for her college bus in the bus stand, the respondent, criminally intimidating the appellant that she would be done away with if she fails to cooperate with him, forced her to accompany him to Sirkazhi near Mayavaram. It was further alleged that on 27.7.2011, the respondent also, taking a blade, attempted to cut his right arm stating that he would commit suicide unless the appellant accompanied him to Sirkazhi. When the appellant succumbed to the pressure on the fear that the respondent would be spoiling the goodwill and reputation of her family and also putting her parents at the risk of life threat, accompanied him. When the appellant succumbed to the pressure on the fear that the respondent would be spoiling the goodwill and reputation of her family and also putting her parents at the risk of life threat, accompanied him. Taking advantage of the same, the respondent has created a false marriage being conducted at Vaitheeswaran temple. However, with great difficulty, the appellant escaped from the clutches of the respondent. In the meanwhile, the appellant's father lodged a complaint before the S-7, Madipakkam Police Station and the case was also taken as 'girl missing' in Crime No.1090 of 2011. Subsequently, on the appearance of the appellant before the said police station, the case was altered into one under Section 366 IPC. After recording her statement, she was produced before the learned Judicial Magistrate at Alandur and thereafter, recording her statement under Section 164 Cr.P.C., the respondent was arrested on 2.8.2011 and remanded to judicial custody. Subsequently, he was also released on bail. Although the respondent was chargesheeted by the S-7 Madipakkam Police, finally, the Mahila Court, Chengalpattu vide the judgment dated 29.6.2015 passed in S.C.No.89 of 2012, acquitted him of the above mentioned charge. A reading of the findings and conclusions reached by the Mahila Court, Chengalpattu in S.C.No.89 of 2012 would clearly speak about the case of harassment, intimidation and blackmail administered by the respondent against the appellant, who was pursuing her college studies. When the prime life of the appellant was put to irreparable loss and consequently her family was also put to face humiliation in the public domain, the respondent has wrongly filed the O.P.No.3502 of 2014 under Section 9 of the Hindu Marriage Act seeking an order for restitution of conjugal rights. When the prime life of the appellant was put to irreparable loss and consequently her family was also put to face humiliation in the public domain, the respondent has wrongly filed the O.P.No.3502 of 2014 under Section 9 of the Hindu Marriage Act seeking an order for restitution of conjugal rights. When it was opposed tooth and nail stating that without any willingness or consent and when the marriage was not at all solemnized in the manner known to law, as it was concocted and after thought surrounded by mysteries and suspicions, the learned II Additional Principal Judge, Chennai has erroneously allowed the petition filed by the respondent under Section 9 of the Hindu Marriage Act, however, when the appellant also filed the O.P.No.4529 of 2013 seeking an order for dissolution of the so-called marriage said to have been solemnized on 27.7.2011 at Vaitheeswaran temple, that was also allegedly registered on 1.8.2011 at the Registrar's office, Royapuram, Chennai as per the Hindu rites and customs, the learned II Additional Principal Judge, Chennai has wrongly dismissed the said petition, by the common order dated 30.1.2020. Now, in spite of the above order, the appellant is not living with the respondent, for the reason that there was no such marriage solemnized as alleged by the respondent. Therefore, when there is no semblance of marriage taken place between the appellant and the respondent on 27.7.2011 and the respondent also has not even substantiated his allegation before the II Additional Family Court, Chennai that the marriage was solemnized in the manner known to law and that the conduct of the parties are writ large and vividly that they are not living together from the date of marriage by leading a normal life, it goes without saying that the allegation with which the respondent filed the petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, is without any merit. But this has been overlooked by the II Additional Family Court, Chennai. Therefore, the impugned fair and decretal order passed by the II Additional Family Court, Chennai is liable to be set aside by allowing the civil miscellaneous appeals, he pleaded. 3. But this has been overlooked by the II Additional Family Court, Chennai. Therefore, the impugned fair and decretal order passed by the II Additional Family Court, Chennai is liable to be set aside by allowing the civil miscellaneous appeals, he pleaded. 3. Mr.G.Magesh Kumar, learned counsel appearing for the respondent submitted that the argument advanced by the learned counsel for the appellant that no marriage has taken place between the appellant and the respondent on 27.7.2011 is unacceptable, inasmuch as both the appellant and the respondent have solemnized their marriage at Vaitheeswaran temple as per the Hindu rites and customs and thereafter, they have also registered the same in the Registrar's office at Parrys, Chennai and that subsequently, on the intervention of the family members of the appellant, she has deserted the respondent and gone back to her parental home. Subsequently, the appellant's family members, opposing the marriage, have wrongly convinced her to part with the contact of the respondent. In the meanwhile, the respondent has been put to incarceration in view of the registration of the case in Crime No.1090 of 2011 by the S-7, Madipakkam Police Station, Chennai. Finally when the matters were taken up by the II Additional Family Court, Chennai, a compromise formula was worked out, thereby the appellant's family offered a sum of Rs.1,00,000/-. But this was not accepted by the respondent. However, after the trial commenced, the respondent sought for some more reasonable amount. As the said reasonable compromise proposal was not accepted by the appellant, the II Additional Family Court, Chennai has passed a reasoned order. Therefore, the appeals filed by the appellant challenging the impugned fair and decretal order deserve to be dismissed, he pleaded. 4. But we are unable to find any merit or justification in the arguments advanced by the learned counsel appearing for the respondent, for the following reasons. Firstly, the respondent approached the II Additional Family Court with O.P.No.3502 of 2014 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on the ground that there was a marriage solemnized on 1.8.2011 at No.10/11, Market Farm First Street, New Washermanpet, Chennai as per the Hindu rites and customs. However, the averment in O.P.No.4529 of 2013 filed by the appellant shows that the marriage was solemnized on 27.7.2011 at Vaitheeswaran temple and subsequently, the same was also registered on 1.8.2011 at the Registrar's office, Royapuram, Chennai. However, the averment in O.P.No.4529 of 2013 filed by the appellant shows that the marriage was solemnized on 27.7.2011 at Vaitheeswaran temple and subsequently, the same was also registered on 1.8.2011 at the Registrar's office, Royapuram, Chennai. When the respondent approached the Court below stating that the marriage was solemnized on 1.8.2011 at No.10/11, Market Farm First Street, New Washermanpet, Chennai, it has not been substantiated by the respondent with any oral and documentary evidence. This vital and crucial legal issue has been completely overlooked by the II Additional Family Court, Chennai. Secondly, when it was also claimed by the respondent that they were living as husband and wife, it was the counter claim of the appellant that her father made a police complaint before the S-7, Madipakkam Police Station stating that his daughter was missing, based on which a case was registered in Crime No.1090 of 2011 for 'girl missing'. Subsequently, on the appearance of the appellant before the said police station, the case was altered into one under Section 366 IPC and her statement was also recorded. Thereafter, she was produced before the learned Judicial Magistrate, Alandur accompanied by her parents. On the basis of her statement recorded under S.164 Cr.P.C., the respondent was arrested on 2.8.2011 and remanded to judicial custody. Subsequently, he was released on bail. When the case was finally tried in S.C.No.89 of 2012, the Mahila Court, Chengalpattu, by a judgment dated 29.6.2015, disbelieving the case of the prosecution, acquitted the respondent of the charge. A perusal of the above judgment also goes to the root of the respondent's case. When the Mahila Court, Chengalpattu, accepting the case of the respondent, recorded that the marriage took place on 27.7.2011 at Vaitheeswaran temple, the pleading made by the respondent in the petition under Section 9 of the Hindu Marriage Act shows that the marriage between the appellant and the respondent was solemnized on 1.8.2011 at No.10/11, Market Farm First Street, New Washermanpet, Chennai, the admitted portion of the pleading in paragraph-3 of the petition is extracted hereunder:- “3. The respondent is the legally wedded wife of the petitioner. The respondent is the legally wedded wife of the petitioner. The marriage between the petitioner and the respondent was solemnized on 01.08.2011 at No.10/11, Market Farm 1st Street, New Washermanpet, Chennai-81 according to Hindu rites and customs....” Therefore, when the respondent himself, in the petition filed under Section 9 of the Hindu Marriage Act, has taken one stand and it is completely differing from the one canvassed before the Mahila Court, Chengalpattu, we are of the considered opinion that the respondent has not made out a case. Thirdly, the arguments advanced by the learned counsel appearing for the respondent before this Court also would show that the appellant's family has come out with the proposal for compromise offering one lakh rupees. Since the respondent has demanded a sum of Rs.5,00,000/- to give his consent for divorce, we fail to understand as to how the respondent, who has married the appellant out of love and affection, can come forward to compromise his pure love only for a sum of Rs.5,00,000/-. That also vindicates the stand of the appellant that there was no marriage solemnized between the appellant and the respondent, as alleged by the respondent. Therefore, for these discrepancies and infirmities, we are inclined to interfere with the impugned fair and decretal order passed by the Court below. 5. Accordingly, for the reasons mentioned above, the fair and decretal order passed by the learned II Additional Principal Judge, II Additional Family Court, Chennai is set aside and the civil miscellaneous appeals shall stand allowed. Consequently, the petition in O.P.No.3502 of 2014 filed by the respondent for restitution of conjugal rights stands dismissed and the petition in O.P.No.4529 of 2013 filed by the appellant seeking a decree for dissolution of marriage stands allowed as prayed for. However, there is no order as to costs.