CMA/2577/2022 of K.Jayakumar Vs Dhanalakshmi on 30 September 2026

JUDGMENT

(Judgment of the Court was delivered by P.T.Asha J.) The unsuccessful husband in a petition for divorce is the appellant before this Cour . The husband had filed M.O.P.No.58/2016 on the file of Family Court, Karaikal, seeking a decree for dissolution of marriage on the ground of cruelty and desertion.

2. The facts are briefly set out herein in below :

(a) The marriage between the appellant and the respondent was held on 30.05.1986 at Sri Mariamman Temply, Ozhugaimangalam. Out of the wedlock, they were blessed with two sons namely Harikrishnan, born on 31.05.1987 and Velumayil born on 12.12.1989 respectively.

(b) The appellant earned his living by climbing trees and out of this income, he maintained his family, educated his children and assisted them in getting employment.

(c) The appellant would submit that originally he and his family were living in a thatched house and after his sons had started earning, the thatched roof was demolished and pucca structure had been put up. While so, the respondent had insisted the appellant/petitioner to execute a release deed in her favour with respect to the storeyed

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building which belonged to the appellant. This was refused by the appellant and he would state that as against the said property, a suit for partition was filed by his brothers and sisters claiming right over the house and that he would execute a release deed only after the suit was finally disposed of. The respondent was not convinced and she started quarrelling with the appellant and had failed to discharge her duties as a wife.

(d) The appellant would contend that the marriage of his elder son Harikrishnan was conducted by the respondent without inviting the appellant, which caused a great mental agony to him. As a result of which, there was a ruckus in the family. Thereafter, the panchayat was held and the elders had advised for re-union. However, the respondent was not willing to re-unite and had left the appellant/petitioner sometime in September 2013 and since then she has been living separately.

(e) On 26.09.2015, the petitioner sent a legal notice to the respondent seeking divorce. Though the notice was served on the respondent, she did not respond to it. Therefore, the appellant/petitioner was constrained to file a petition for divorce before the Family Court, Karaikal on 16.10.2015 and the same was taken on file in M.O.P.No.51/2015. A compromise was effected before the Court and the petitioner and respondent were directed to live together with

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conditions, and the said petition for divorce came to be dismissed on 15.03.2016. However, the respondent had not obeyed the conditions and had started living separately. Hence, the petitioner had filed the present petition for divorce.

3. Per contra, the respondent had filed the counter affidavit, in which, she denied the allegations made by the petitioner. She would contend that the appellant had not contributed his income for the higher education of her children. She further denied the contention of the appellant with regard to the construction of storeyed building. On the contrary, she contended that her sons Ranjit @ Harikrishnan and Velumayil had obtained loans from Axis Bank and HDFC Bank and constructed a RCC building by removing the old thatched house. It is her contention that her elder son Harikrishnan had fallen in love with one Jancy and desired to marry her. The appellant initially gave his consent and the marriage date was fixed on 16.09.2015, however, later he insisted that the his son's marriage with Jancy should not be performed and his name should not be printed in the invitation. The respondent would also submit that during her son's marriage, the appellant had given lot of problems both to the respondent and her children at the instigation of his brothers. The entire marriage expenses was borne out by her son Harikrishnan. On 08.09.2015, the appellant had sent a legal notice to the respondent and her children demanding

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to vacate the house. The respondent would also submit that she had never strayed from discharging her duties as a wife and that she would love to live with the appellant and her children. She would submit that the divorce petition was filed by the appellant only with a view to bring down the reputation of the respondent and her children before their neighbours, relatives etc., She would also submit that she and the appellant had been living together till June 2015. Therefore, the allegation of the appellant that the respondent had deserted him for more than two years is baseless. Hence, she sought for the dismissal of the divorce petition.

4. The appellant had examined himself as P.W.1 and one Jayalakshmi as P.W.2. He had marked Ext.P1 to Ext.P9. The respondent had examined herself as R.W.1 and one Valarmathi as R.W.2, and on her side Ext.R1 to Ext.R5 were marked.

5. The Family Court had framed the following points for consideration :

1. Whether the respondent has caused cruelty and deserted the petitioner?

2. Whether the petitioner is entitled for dissolution of marriage took place between the petitioner and the respondent on 30.05.1986?

3. Whether the respondent is entitled for a decree of restitution of conjugal rights as per counter-claim?

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6. The learned Judge had returned the findings that the appellant had failed to prove the acts of cruelty. Though the appellant had contended that he and respondent were living separately, the truth of the matter is that they are living under the same roof, but had a separate kitchen. The learned Judge had taken into consideration the admission of the appellant and come to the conclusion that there was no desertion by the respondent-wife or his children and it is only the appellant who had voluntarily withdrawn from the company of his wife and children. Ext.P8 is the joint memo of compromise filed by the appellant and respondent in M.O.P.No.51/2015, a perusal of which would reveal that the respondent had undertaken to live with appellant. The Family Court also held that the earlier petition for divorce which was filed on the very same grounds, has been compromised and therefore, there is no question that the marriage has been irretrievably broken. That apart, the appellant had not been able to establish the factum of cruelty.

7. The learned Judge had also observed that it is the appellant who had withdrawn from the company of the respondent and not vice-versa, and taking note of the submission of the respondent that she was willing to rejoin the appellant, the counter claim for restitution of conjugal rights was allowed. It is challenging this order, the appellant is before this Court.

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8. We have heard the learned counsel on either and also perused the materials on record.

9. The point that arise for consideration in this appeal is that :

"Whether the petitioner has proved that the marriage has to be dissolved on the grounds of cruelty and desertion ?"

10. A mere perusal of the contents of the petition and evidence would clearly show that there is no serious allegations of cruelty. The main allegation is that the respondent had demanded a release deed to be executed in her favour and that the refusal on the part of the appellant had resulted in frequent quarrels, and ultimately the respondent had left the matrimonial home. The appellant's other contentions viz., the respondent and his children had not treated him with respect; that the house had been constructed by him, from and out of his earnings; that the respondent had not discharged her duties as a wife; that he was not invited for the wedding of his elder son; that he was not given proper respect during his elder son's marriage; that his name is not added in the wedding invitation, are all found to be false. The evidence would show that the appellant had participated in the feast given in his house to the in-laws of his first son. The appellant has made a big issue out of a trivial issues. The allegation that he was not given due respect has also been found against him, as

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his name has featured in the wedding invitation of his son and that he had participated when his son's in-laws have come over to his house.

11. The allegations of cruelty has not been proved by the appellant. That apart it is seen that the cause in the earlier application filed for divorce on the grounds of cruelty and desertion, and the cause of action now pleaded overlaps. There is no explanation for the same. As regards the plea of desertion, the evidence clearly shows that the appellant and the respondent are residing under the same roof and therefore, the question of desertion does not arise.

12. We therefore see no reason to disagree with the order passed by the learned Judge, Family Court, Karaikal in M.O.P.No.58/2016, dated 19.07.2018. Accordingly, the civil miscellaneous appeal is dismissed. No costs.

(P.T.A.,J.) (N.M.,J.) 30-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No DS

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To:

1. The Family Court Karaikal.

2. The Section Officer High Court, Madras.

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P.T.ASHA J. AND N.MALA J. DS CMA No. 2577 of 2022 30-09-2026