T.Sivakumar Vs D.Narmadha

PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act, 1984, praying to set aside the Fair and Final Order dated December 13, 2022 passed in O.P.No.2395 of 2020 by the I Additional Family Court, Chennai.

¶11

For Appellant : Ms.Girija Velmurugan For Respondent : Mr.T.Sri Krishna Bhagavat

¶12

Page No.1 of 19

¶13

https://www.mhc.tn.gov.in/judis

¶14

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶15

CMA NO.1011 OF 2023

¶16

T.Sivakumar

¶17

... Appellant / Petitioner

¶18

Vs.

¶19

D.Narmadha

¶20

... Respondent / Respondent

¶21

PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act, 1984, praying to set aside the Fair and Final Order dated December 13, 2022 passed in O.P.No.3713 of 2021 by the I Additional Family Court, Chennai.

¶22

For Appellant : Ms.Girija Velmurugan For Respondent : Mr.T.Sri Krishna Bhagavat

¶23

COMMON JUDGMENT

¶24

R.SAKTHIVEL, J.

¶25

The parties herein got married on June 14, 2017, according to Hindu rites and customs. Some disputes arose between the couple. Consequently, on August 18, 2020, the husband filed a petition under Section 13 (1) (i-a) of the ‘Hindu Marriage Act, 1955’ [‘H.M. Act’ for short] before the Principal Sub Judge, Trichy against his wife praying to dissolve the marriage between them, and on October 28, 2020, the wife filed a petition in O.P.No.2395 of 2020 under Section 9 of the H.M. Act

¶26

Page No.2 of 19

¶27

https://www.mhc.tn.gov.in/judis

¶28

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶29

before the 'I Additional Family Court, Chennai' ('the Family Court' for short) praying for restitution of conjugal rights. The petition filed by the husband was later transferred to the Family Court and renumbered as O.P.No.3713 of 2021. Joint trial was conducted. On the side of the wife, wife was examined as P.W.1 and Ex-P.1 to Ex-P.9 were marked. On the side of the husband, the husband was examined as R.W.1 and Ex-R.1 to Ex-R.4 were marked. The Family Court eventually ruled in favour of wife by way of a Common Judgment and Decree dated December 13, 2022. Challenging the same, the husband has preferred these Civil Miscellaneous Appeals.

¶30

2. For the sake of convenience, henceforth, the parties will be referred to as per their array before the Family Court in O.P.No.3713 of 2021 i.e., the husband will be referred to as the petitioner and the wife as the respondent.

¶31

PETITIONER’S (HUSBAND) CASE

¶32

3. Case of the petitioner is that the marriage between the petitioner (husband) and the respondent (wife) took place on June 14, 2017, according to Hindu rites and customs. The respondent’s parents had

¶33

Page No.3 of 19

¶34

https://www.mhc.tn.gov.in/judis

¶35

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶36

rented a house at Nandanam even before the marriage and insisted the petitioner to begin their matrimonial life there. Accordingly, the couple moved into the rented house after marriage. Two months into the marriage, the respondent without any intimation to the petitioner, brought in her aunt and later her parents. This resulted in loss of privacy to the petitioner.

¶37

3.1. The petitioner is running his own software company, M/s. Xenovex Technologies Pvt. Ltd., with about 100 employees in Vadapalani, Chennai. When he requested to move closer to his office, the respondent refused insisting to live along with her parents at the Nandanam House. This caused hardship to the petitioner.

¶38

3.2. Meanwhile, the first floor of the Nadhanam House

¶39

became vacant and the petitioner wanted to move into it along with the respondent. But the respondent’s parents moved into the first floor citing good ventilation. Thereafter, the petitioner attempted to live peacefully with the respondent in the ground floor. However, the respondent was arrogant and quarrelsome. Further, the respondent was avoiding physical intimacy with the petitioner.

¶40

Page No.4 of 19

¶41

https://www.mhc.tn.gov.in/judis

¶42

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶43

3.3. The respondent is not ready and willing to give birth to a child. Whenever the petitioner insisted on having a child, the respondent gave one reason or another for not having children of their own, instead suggesting adopting a child. The respondent is always concerned about her physique and is not at all ready to give birth to a child, while the petitioner and his family are very eager to welcome children.

¶44

3.4. Thereafter, the couple agreed between them to separate through mutual divorce. But, later the respondent disagreed. The attitude and acts of the respondent have caused mental cruelty to the petitioner. Hence, he has filed for divorce on the ground of cruelty.

¶45

RESPONDENT'S (WIFE) CASE

¶46

4. Case of the respondent is that after their marriage, the couple was living together in a rented house at Nandanam. The petitioner and the respondent had a normal sexual relationship and it is false that the respondent was unwilling to give birth to a child. The respondent is equally interested in having a baby.

¶47

Page No.5 of 19

¶48

https://www.mhc.tn.gov.in/judis

¶49

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶50

4.1. At the time of marriage, the petitioner had informed that

¶51

he would have to travel to South Africa. Therefore, both decided to stay in Nandanam and there were never any talks of moving out of Nandanam as claimed by the petitioner. The respondent’s father was diagnosed with renal failure in the month of July 2019 and had to be on dialysis. For lack

¶52

of sufficient facilities at her home town, she had her parents stay at the Nandanam House. As a daughter, it is her duty to take care of her parents.

¶53

4.2. The respondent discharged her duties as a dutiful wife to the petitioner and wanted to stay at her in-laws' place during the lockdown period so that their understanding would improve. However, things turned out otherwise and she was treated like a third person in that house.

¶54

4.3. The petitioner and the respondent were living together

¶55

till April 2020. Thereafter, the petitioner withdrew from the society of the respondent without any valid reason. The respondent never caused any cruelty to the petitioner. Hence, the petition for restitution of conjugal rights. Accordingly, the respondent sought to dismiss the divorce petition.

¶56

Page No.6 of 19

¶57

https://www.mhc.tn.gov.in/judis

¶58

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶59

FAMILY COURT

¶60

5. The Family Court, after analyzing the oral and documentary evidence available on record, concluded that mere austerity of manners and occasional wordy altercations does not amount to mental cruelty. The petitioner failed to prove his case. Accordingly, dismissed the petition filed by the petitioner (husband) in O.P. No. 3713 of 2021 for divorce, and allowed the petition filed by the respondent (wife) in O.P. No. 2395 of 2020 granting a decree of restitution of conjugal rights, by a Common Judgment and Decree dated December 13, 2022.

¶61

6. Feeling aggrieved, the husband has preferred these Civil Miscellaneous Appeals.

¶62

7. Upon perusing the entire evidence available on record and

¶63

the memorandum of grounds of appeal, the following points arise for consideration in these Civil Miscellaneous Appeals:

¶64

(i) Whether, in the facts and circumstances of this case, the wife’s parents staying with the couple for a considerably long time, invades the privacy of the couple and amounts to cruelty ?

¶65

Page No.7 of 19

¶66

https://www.mhc.tn.gov.in/judis

¶67

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶68

(ii) Whether the averment that the wife is unwilling to bear a child is proved ?

¶69

(iii) Whether the petitioner has made out a case under Section 13 (1) (i-a) of H.M. Act ?

¶70

(iv) Whether the Family Court’s Judgment and Decree is to be interfered with?

¶71

ARGUMENTS

¶72

8. The learned Counsel for the petitioner / husband submitted

¶73

that the Family Court's Order is against law and evidence. The Family Court wrongly dismissed the petitioner’s divorce petition in O.P.No.3713 of 2021 and allowed the respondent’s petition for restitution of conjugal rights in O.P.No.2395 of 2020, which amounts to great injustice to the petitioner. The respondent had decided even before marriage that she would not give birth to a child and insisted on adoption. Despite the petitioner’s strong desire for a biological child, she refused, which amounts to mental cruelty, as held by the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511 . Even though the petitioner helped her to clear her family debts, she continued her hostile

¶74

Page No.8 of 19

¶75

https://www.mhc.tn.gov.in/judis

¶76

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶77

and indifferent behaviour. Further, she refused to set up a separate matrimonial home and insisted that the petitioner live with her family, infringing his right to privacy. Accordingly, she prayed to allow the appeals, set aside the Judgment and Decree of the Family Court and dissolve the marriage between the couple by way of divorce on the grounds of cruelty.

¶78

9. On the other hand, the learned Counsel for the respondent / wife argued that the Family Court’s decision is correct and does not require any interference. The petitioner failed to prove any serious allegations of cruelty, and petty quarrels and disagreements cannot be grounds for divorce. There is no evidence of any police complaints or serious disputes between the parties. She also filed a petition for restitution of conjugal rights, showing her willingness to continue the marriage. Caring for parents is a duty of both sons and daughters and the respondent merely fulfilled her responsibility. She was merely taking care of her ailing father. The parents of the respondent stayed along with the couple for lack of better medical facilities in their home town. And when the first floor of the rented house became vacant, they moved into it giving more space and privacy for the couple. It is absolutely false that

¶79

Page No.9 of 19

¶80

https://www.mhc.tn.gov.in/judis

¶81

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶82

the respondent is not interested in bearing a child. The respondent is equally interested in welcoming a child into the family. The couple was leading a normal marital life with the usual wear and tear until April 2020. Thereafter, without any reasonable cause, the petitioner withdrew himself from the society of the respondent. The respondent’s father passed away in October 2020, and it is the moral obligation on the part of the petitioner to extend support and care during such hard times. Hence, the Family Court was right in allowing the wife’s petition for restitution of conjugal rights and dismissing the divorce petition. Accordingly, he prayed to dismiss the Civil Miscellaneous Appeals and uphold the verdict of the Family Court.

¶83

DISCUSSION

¶84

10. This Court has heard the arguments of the learned Counsels on either side in full and perused the entire materials available on record.

¶85

11. Cumulative reading of the evidence of P.W.1 / respondent and R.W.1 / petitioner would reveal the following. The marriage between

¶86

the couple was solemnized on June 14, 2017. The petitioner was running

¶87

Page No.10 of 19

¶88

https://www.mhc.tn.gov.in/judis

¶89

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶90

an Software Company at Chennai and the respondent was also working in Chennai. Before the marriage, the respondent along with her family was staying in the said rental house at Nandanam. After marriage, the couple set up their matrimonial house there itself as the petitioner had plans to travel to South Africa on a few months trip, and the respondent’s parents moved to their home town. When the petitioner went to South Africa, the respondent’s aunt stayed with her in the Nandanam rented house for companionship. Only in December 2019, the respondent’s parents moved into the Nadhanam rented house for her father’s medical requirements and treatment. Thereafter, when the first floor portion of the said house became vacant, the respondent’s parents moved into it, while the couple continued to stay in the ground floor. In January 2020, the respondent got employed in an MNC. Until then there were no disputes between the couple other than the usual wear and tear of marriage. There is no serious dispute with the above facts.

¶91

12. Admittedly, the respondent’s father was sick. Being a daughter, it is an obligation on the part of the respondent to take care of him. The respondent states that there were no proper medical facilities at her home town and that is why she moved her parents into the Nandanam

¶92

Page No.11 of 19

¶93

https://www.mhc.tn.gov.in/judis

¶94

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶95

rented house. This might have affected the privacy of the couple, but cannot be termed to be cruelty. The respondent was merely fulfilling her duty as a daughter. She was looking after her ailing father suffering from renal failure. It is to be noted that when the first floor of the Nandanam rented house became vacant, her parents moved in there. As a daughter, she has a duty to care of her parents and merely maintaining her parents cannot be considered cruelty. The husband's claim that his privacy was affected due to the presence of his in-laws is not sufficient to constitute cruelty under the law. Further, the respondent has stated in her evidence that she never refused to relocate near the petitioner’s office. She has stated that they looked for rental houses but they could not arrive at a consensus - what the respondent liked was not liked by the petitioner and vice versa. Even while assuming otherwise, the respondent could have wanted to stay closer to her ailing father which is also a valid concern. This cannot be termed as cruelty. Disputes do not mean cruelty. At its core, it is a difference of opinion between the spouses and it can only be resolved by themselves through mutual understanding. Accordingly, Point No.(i) is answered in favour of respondent and against the petitioner.

¶96

Page No.12 of 19

¶97

https://www.mhc.tn.gov.in/judis

¶98

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶99

13. The petitioner’s main contention is that the unwillingness

¶100

of the respondent to bear a child has caused cruelty to him. P.W.1 / respondent in Paragraph No.15 of her chief affidavit has clearly stated that she is equally interested in having a baby. Conjoint reading of the cross-examination of R.W.1 / petitioner would show that the sexual relationship between the couple was normal and the respondent was also willing to bear a child. Relevant extract is hereunder:

¶101

“jpUkzj;jpw;F Kd;g[ ehd; vd; kidtp kPJ vy;yh tifapYk; jpUg;jpaile;j gpwF jhd; jpUkzj;jpw;F xg;g[f;bfhz;nld; vd;why; rhpjhd;/ eh';fs; ,UtUk; jpUkzj;jpw;F Kd;g[ Fiwe;jJ 5 kzp neuk; ngrpndhk;/ mg;nghJ FHe;ij kw;Wk; FLk;gj;ij gw;wp jhd; ngrpndhk;/ mjpy; jpUkzk; Mfp 6 khjj;jpw;F gpwF FHe;ij bgw;Wf;bfhs;syhk; vd;W ngrpf;bfhz;nlhk;/ mjpy; vy;yhk; rhpahf ,Ue;jjhy; ehd;

¶102

jpUkzj;jpw;F xj;Jf;bfhz;nld;/ me;j jpUkzk; vdJ jdpg;gl;l tpUg;gj;jpd; nghpy; ele;jjh. vdJ bgw;nwhh;fs; xg;g[jnyhLk; midj;J

¶103

FLk;g cWg;gpdh; xg;g[jnyhLk; ele;jJ/ jpUkzj;jpw;F Kd;g[ vd; kidtp mtuJ bgw;nwhh;fSld; brd;idapy; trpj;J te;jhh;fs; vd;gJ vdf;F bjhpa[kh vd;why; vd; kidtp jhd; jdJ mj;ij cld; trpg;gjhf vd;dplk; Twpdhh;///// ehd; vd; kditpa[ld; xU thuj;jpy;

¶104

Page No.13 of 19

¶105

https://www.mhc.tn.gov.in/judis

¶106

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶107

vj;jid Kiw jhk;gj;jpa cwtpy; <LgLntd; vd;why; mt;tg;nghJ eh';fs; jhk;gj;jpa cwt[ <LgLnthk;/ vdf;Fk; vd; kidtpf;Fk;

¶108

FHe;ij bgw;Wf;bfhs;tjpy; ve;j tpj FiwghLk; ,y;iy vd;why; rhpjhd;/

¶109

ehd; vd;Dila kDtpy; b$ae;jpdp vd;w kdey kUj;Jthplk; ehd;

¶110

rpfpr;irf;F nghndd; vd;W ehd; brhy;ypa[s;nsd; vd;why; ehd; nkw;go

¶111

kUj;Jthplk; Mnyhridf;F jhd; brd;nwd;/ FLk;gj;jpy; elf;Fk; gpur;rpidf;F jPh;t[fhzntz;o Mnyhridf;fhf brd;nwd;/ ehd; jhd; Kjypy; nkw;go kUj;Jthplk; brd;nwd; vd;why; rhpjhd;/ ehd; vd; kidtpia tw;g[Wj;jp mnj kUj;Jthplk; miHj;Jbrd;nwdh vd;why; ,y;iy/ kUj;Jth; mtiu jdpahf tur;brhy;ypapUe;jhh;/ mth; jdpahf ngha; ghh;j;jhh;/ vd;dplk; fhl;lg;gLk; Mtzk; b$ae;jpdp vd;w kUj;Jth; vdf;F tH';fpa Mnyhrid Fwpg;g[ vd;why; nkw;go Mtzj;ij kUj;Jth; vd;dplk; bfhLf;ftpy;iy/ ntW FLk;g ey MnyhrfUf;F rpghhpR bra;jhh;/ vd;dplk; fhl;lg;gLk; Mtzj;jpy; vd;d vGjpapUf;fpwJ vd;W vdf;F bjhpahJ/ nkw;go FLk;g ey Mnyhrfhpd; bgah; vd;d vd;why; mJ vdf;F bjhpahJ/ vd; kidtp jhd; mthplk;

¶112

bjhiyngrpapy; ngrp mtiu re;jpg;gjw;F appointment th';fp mtiu re;jpj;njhk;/ vg;nghJ mtiu re;jpj;njhk; vd;why; kUj;Jth; b$ae;jpdpia

¶113

ghh;j;jjpypUe;J xU thuk; fHpj;J ghh;j;njhk;/ vdf;F rhpahf khjk; bjhpatpy;iy/ b$ae;jpdp vd;w kUj;Jthplk; 2004 Kjy; rpy kd

¶114

Page No.14 of 19

¶115

https://www.mhc.tn.gov.in/judis

¶116

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶117

gpur;rpid vdf;F ,Ue;jjhf brhy;ypa[s;nsd; vd;why; ,y;iy/ vd;d brhd;ndd; vd;why; bjhHpy; h P jpahf gy gpur;rpidfis

¶118

re;jpf;fntz;oa[s;sJ vd;Wk;. mjdhy; kd mGj;jk; Vw;gl;L J}f;fk; ghjpf;fg;gl;ljhf brhy;ypapUf;fpnwd;////// vd;Dila epWtdk; tlgHdpapy;

¶119

,Ue;jJ/ mjdhy; mYtyfj;jpw;F mUfpy; tPL ghh;f;f ntz;Lk; vd;W brhy;yp ehd; mthplk; rz;ilnghl;nld;/ mjw;F mth; ee;jdj;ij tpl;L mth; tug;nghtjpy;iy vd;W vd;dplk; rz;ilnghl;lhh;/ kPz;Lk; vj;jid ehl;fs; fHpj;J ee;jdk; tPl;ow;F jpUg;gp te;njd; vd;why; mLj;jehns

¶120

te;Jtpl;nld;/ Vbdd;why; vd; ez;gh;fs; vd; kidtpaplk; ngrp vd;dplKk; rkhjhdk; ngrp vd;id ee;jdk; tPl;oy; bfhz;Lte;J tpl;lhh;fs;/ filrpahf ee;jdk; tPl;oypUe;J kidtpia tpl;L ve;j mwptpg;g[kpd;wp gphpe;J brd;nwd; vd;why; ehd; Kd;djhfnt

¶121

bjhptpj;Jtpl;L Mf!;l;L 2019 y; brd;nwd;/ FHe;ij ngW rk;ge;jkhf

¶122

v';fSf;Fs; tpthjk; ele;jJ/ 2019 f;F gpwF ehd; kPz;Lk; vd; kidtpa[ld; nrh;e;j thH;e;njdh vd;why; nrh;e;J thH;e;njd;/ ehd; 2019y; vd; kidtpia gphpe;J brd;nwd; vd;W brhy;tJ jtW vd;why; rhpay;y/ ehd; vg;nghJ filrpahf gphpe;njd; vd;why; Vg;uy; 2020 md;W gphpe;J brd;nwd;/ vd; kidtp jhf;fy; bra;Js;s kDit ehd; goj;J ghh;njd;/ mjpy; gj;jp 7y; Vg;uy; 2020 tiu v';fSf;Fs; jhk;gj;jpa cwt[ ,Ue;jJ vd;W brhy;ypa[s;shh; vd;why; ,Uf;fyhk;/ Vg;uy ; 2020 f;F

¶123

Page No.15 of 19

¶124

https://www.mhc.tn.gov.in/judis

¶125

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶126

Kd;g[ filrpahf v';fSf;Fs; jhk;gj;jpa cwt[ ,Ue;jJ vd;why; Vg;uy; 2020 f;F XhpU khj';fSf;F Kd;g[ tiu ,Ue;jpUf;fyhk;/”

¶127

13.1. Perusal of the evidence would show that the couple was living together under one roof till April 2020, and leading a normal marital life. There is no concrete proof that the wife refused cohabitation for having a child. The petitioner has not let in any positive evidence to show that the respondent is unwilling to bear a child. In view of the above, the said contention of the petitioner deserves to be rejected. Point No.(ii) is answered accordingly.

¶128

14. From the evidence available on record, it can only be concluded that there was nothing more than natural wear and tear in the marital life of the petitioner and the respondent. There appears to be no cruelty caused to the petitioner. The petitioner has not made out a case for cruelty under Section 13 (1) (i-a) of H.M. Act. The petitioner abandoned his wife / the respondent without any sufficient cause. He failed to look after her when she would have needed him the most – the demise of the respondent’s father. The burden of proving the reasonable excuse / cause lies on the person who withdrew themself from the society of the other

¶129

Page No.16 of 19

¶130

https://www.mhc.tn.gov.in/judis

¶131

C . M . A . N o s . 1 0 0 9 & 1 0 11 o f 2 0 2 3

¶132

spouse. The petitioner has not discharged the said burden. In these circumstances, this Court is of the view that the wife is entitled to restitution of her conjugal rights. The Family Court correctly concluded that the allegations of cruelty were not established. Since the husband left the matrimonial home without sufficient cause, the Family Court rightly ordered restitution of conjugal rights in favour of the wife. Point Nos.(iii) and (iv) are answered accordingly, in favour of the respondent and against the petitioner. Therefore, this Court finds no merit in these appeals filed by the petitioner / husband.

¶133

RESULT

¶134

15. Accordingly, both CMAs are dismissed. In view of the

¶135

facts and circumstances of this case, the parties shall bear their own costs.

¶136

[J.N.B., J.] [R.S.V., J.] 4 / 06 / 2025

¶137

Index : Yes Neutral Citation : Yes Speaking Order : Yes TK

¶138

Page No.17 of 19