CMA(MD)/55/2022 of RAICHAL RANI Vs AROKIARAJ on 21 September 2026

JUDGMENT

(Judgment of the Court was delivered by G.R.Swaminathan, J.) This appeal is directed against the order dated 27.10.2021 made in I.D.O.P.No.1 of 2017 on the file of the Family Court, Dindigul.

2. The marriage between the appellant and the respondent was solemnized on 11.02.2000 as per Christian rites and customs. Two children were born through the wedlock. The relationship between the parties came under strain and on 04.06.2010, both of them entered into an agreement to part with amicably. The respondent / husband filed I.D.O.P.No.1 of 2017 in January 2017 for dissolving his marriage with the appellant on the ground of cruelty as well as desertion. The appellant entered appearance and filed detailed counter denying the allegations. Based on the rival pleadings, the court below framed the necessary issues. The respondent herein examined herself as P.W.1. Ex.P1 to Ex.P5 were marked. The appellant examined herself as R.W.1. Ex.R1 &

Ex.R2 were marked. After hearing both the parties and considering the evidence on record, the Family Court allowed I.D.O.P.No.1 of 2017 vide order dated 27.10.2021. Assailing the same, this appeal has been filed. Though the respondent has been served and his name is printed in the cause list, he has not chosen to enter appearance.

3. We heard the learned counsel and also went through the entire records. The point that arises for consideration is whether the court below was justified in allowing IDOP filed by the respondent herein on the ground of cruelty as well as desertion?

4. Let us examine whether the allegation of desertion has been made out. We had a look at the petition filed by the respondent herein. The respondent was residing at Door No.28, East Arockia Matha Street, Dindigul Town. The address of the appellant was Door No.28A, East Arockia Matha Street, Dindigul Town.

5. The learned counsel for the appellant states that there is no door No.28A and that both the parties have been residing under the same roof.

He however fairly conceded that the appellant left the matrimonial home, the moment the divorce OP was allowed. When both the parties are under the same roof, the question of desertion does not arise at all. Secondly, both the parties executed an agreement before the notary public for amicable separation and the said document was marked as Ex.P3. When the respondent also wanted to put an end to the marriage, he cannot accuse the appellant of having deserted him. The respondent cannot take advantage of his own wrong. Therefore, the allegation of desertion is clearly not made out.

6. The respondent had alleged that the appellant used to suspect his fidelity. But then, expect his own testimony, there is no material in support of the said allegation. No other witness has been examined.

7. It is true that the appellant lodged a police complaint against the respondent. We had a look at Ex.R1. It is alleged that the respondent herein hit the appellant with a brick and as a result, the appellant suffered injury. Ex.R2 is the discharge summary issued by the Government hospital, Dindigul. When the respondent had physically attacked the appellant, the appellant was left with no other option, but to lodge a police complaint. Fortunately, for the respondent, it did not metamorphose into an FIR. The appellant cannot be said to have committed cruelty merely because she took recourse to a legal remedy. Looked at from any angle, the offence of cruelty is also not made out.

8. The order of the court below is set aside. This Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. (G.R.S. J.,) & (M.D.S. J.,) 21.09.2026 NCC : Yes/No Index : Yes / No Internet : Yes/ No rmi/skm To: The Family Court, Dindigul. Copy to: The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.

G.R.SWAMINATHAN, J. and M.D.SUMATHI

, J.

rmi C.M.A.(MD)No.55 of 2022

21.09.2026