CMA/219/2018 of SATHYAPRIYA Vs N. RUTHRAMOORTHY on 9 September 2026

COMMON JUDGMENT

(Judgment of the Court was delivered by P.T.Asha J.) The wife is the appellant in the above civil miscellaneous appeals. C.M.A.No.219/2018 is filed challenging the order passed in F.C.O.P.No.114 of 2011 on the file of Family Court, Salem. C.M.A.No.220/2018 is filed challenging the order in F.C.O.P.No.128 of 2011 on the file of Family Court, Salem.

2. F.C.O.P.No.114 of 2011 was filed by the respondent/husband seeking divorce on the ground of adultery and F.C.O.P.No.128 of 2011 was filed by the appellant/wife for restitution of conjugal rights. Since the facts are identical in both the matters and a common judgment was passed in F.C.O.P.No.114 of 2011 and F.C.O.P.No.128 of 2011 by the Family Court, Salem, this Court is also proceeding to pass a common judgment.

3. The facts as set out in F.C.O.P.No.114 of 2011 forms the basis of the narration of the case. The case of the respondent/husband is that on 27.08.2004, he had married the appellant as per Hindu Rites and Customs. Out of the wedlock two sons were born. Few days after their marriage, the appellant had developed petty quarrels with him. She showed disrespect towards him and to his parents. She used unparliamentary words against her in-laws. She also neglected to take care of minor children and also failed in her duties as a wife.

4. The respondent-husband would also allege that sometime in 2009, the appellant-wife had illicit relationship with one S.Raghavan, S/o.Sadasivam. This fact came to his knowledge through his neighbours and the housemaid of his house owner. As a result, he had been defamed in the midst of his neighbours. The respondent goes one step further to state that he himself had personally witnessed the appellant having illegal intimacy with the said Raghavan on 28.12.2009, when he had returned from his business trip early. The respondent, on seeing them, had burst out into anger and shouted at them, but the appellant never cared and immediately told the respondent that she was ready to give divorce and requested him that she be permitted to go to her parent's house along with her sons. The respondent immediately called his family friends and requested them to drop the appellant in her parent's house and the same is done on the same day. On the next day, i.e., on 30.12.2009, a panchayat was conducted in the house of their common friend, where the appellant had agreed to give divorce to the petitioner within a period of three months time. She had also informed him that she would apply for divorce on some other ground and that the respondent should not object to the same. The respondent had also agreed to it. Even after a lapse of three months, the appellant did not file a petition for divorce as assured by her, however, she continued to lead an adulterous life. Hence, the respondent left with no other option, had filed F.C.O.P.No.114 of 2011 seeking divorce on the ground of adultery.

5. The counter affidavit has been filed by the appellant-wife denying the various allegations put forward by the respondent. She would submit that she is the one who had suffered at the hands of the respondent on account of his physical cruelty as well as his suspicious mind. She would submit that on two occasions, she was forced to abort the child that she had conceived and this has taken its toll on the appellant's health. She also denied the allegations levelled against her with reference to her alleged illicit intimacy with the said Raghavan. She would also submit that no panchayat was conducted on 30.12.2009 as alleged by the respondent and that on 29.12.2009, the respondent had returned home in a drunken mood and was not in a state to realise what is happening and that he had beaten the appellant and sent her out of the home with the help of his friends, for the reasons best known to him. She would reiterate that she is only desirous of resuming her marital life with the respondent. She, in clear and categorical terms had denied the allegation of adultery. It is also admitted by her that her sons are living with her. She prayed for rejection of divorce. The appellant on her part has filed F.C.O.P.No.128 of 2011 for restitution of conjugal rights.

6. Before the Family Court, Salem, the husband had examined himself as P.W.1 and one Sivakumar, a person who is having a business dealings with the respondent-husband as P.W.2 and one Krishnaveni, who is the maid servant in the house of the husband as P.W.3. Ext.P1 to Ext.P9 were marked on the side of the respondent-husband. The appellant had examined herself as R.W.1 and had marked two documents viz., Ext.R1 and Ext.R2 on her side.

7. The learned Family Court Judge in its common judgment dated 29.08.2016 had held that the allegations of adultery had not been proved, however, it granted divorce on the ground of cruelty. The learned Judge in his judgment has observed as follows : "41. ...... me;j mog;gilapnyna ,e;j kDjhuUf;F fpilf;ff;Toa ghpfhuj;jpid Fwpj;J ,e;ePjpkd;wk; ghprPypf;Fk;nghJ. ,e;j jpUkzr;rl;lk; 1955 gphpt[ 13(1)(i)?d; fPH; kDjhuhpd; Fw;wr;rhl;lhdJ epU:gpf;fg;gltpy;iy vd;gjhy; mth; nfhUk; tpthfuj;J ghpfhukhdJ mtUf;F tH';fg;gl tha;g;g[fs; ,y;iy/ mnj rkak; ,e;j vjph;kDjhuhpd; eltof;iffs; fhuzkhf ,e;j kDjhuh; kdhPjpahd kpFe;j cisr;rYf;Fk;. bfhLikf;Fk; cl;gl;Ls;sjhf ,e;ePjpkd;wk; fUJfpd;wgoahy; me;j mog;gilapny kDjhuUf;F mth; nfhUk; ghpfhuj;jpid tH';Ftjw;fhd tha;g;g[fs ; cs;sJ/ Mdhy;. ,e;J jpUkzr;rl;lk ; 1955 gphpt[ 13(1)(i)?d; fPH; kDjhuh; Fwpg;ghf ve;j ghpfhuKk; nfhutpy;iy/ mjd; fhuzkhf mtUf;F tptfhuj;J tH';fg;glhj gl;rj;jpy ; kPz;Lk ; ,e;j kDjhuh ; ,e;ePjpkd;wj;jpid ,nj ghpfhuj;jpw;bfd ntbwhU fhuzj;jpd; mog;gilapny mdqf ntz;oa NH;epiyahdJ Vw;gl;LtpLk;/ mJ ,Ujug;gpdiua[k; nkYk; tPz; miyr;ry;. bghUs; tpuak; kd cisr;ry; Mfpatw;Wf;F cs;shf;fptpLk;/ mnjnghy; TLjy; tHf;FfSf;Fk; tHptFg;gjhf mike;JtpLk;/ ,Ujug;gpdhpd; eltof;iffsia[k;. ,t;tHf;fpd; jd;ikapida[k; fUj;jpw;bfhz;L ghh;f;Fk;nghJ ,th;fSila jpUkz cwthdJ Kw;wpYk; rPh;Fiye;Jtpl;lJ

vd;gjhf

,e;ePjpkd;wk ; bjspthf

czu Kotjhy; ,Ujug;gpdiua[k; kPz;Lk; tHf;F eltof;iffSf;F cl;gLj;Jtij tpLj;J. kDjhuh; nfhhpa[s;s tpthfuj;J ghpfhuj;jpid ,e;J jpUkzr;rl;lk; 1955 gphpt [ 13(1)(i)?f;f khwhf ,e;ePjpkd;wnk cUkhw;wk ; bra;J ,e;J jpUkzr;rl;lk; 13(1)(i-a)?d; fPH; tH';fplyhk; vd fUJfpwJ/ ePjpapd; eyid Kd;dpl;L mt;thnw Kot[ bra;fpwJ/ 42/ me;j mog;gilapny. ,e;j vjph;kDjhuh ; nfhhpa[s;s thH;f;if kPl;lspg;g[ ghpfhuKk ; mtUf;F fpilf;ff;Toajhf ,y;iy vd ,e;ePjpkd;wk; Kot[ bra;fpwJ/" and ultimately held that though the allegation of adultery has not been proved, however, the conduct of the appellant had caused immense mental agony to the respondent-husband, and therefore, the respondent is entitled to a decree on the ground of cruelty and had granted divorce by allowing the F.C.O.P.No.114/2011 filed by the respondent-husband, and dismissed the petition for restitution of conjugal rights filed by the appellant-wife in F.C.O.P.128/2011

8. Aggrieved by the said impugned order, the appellant had filed two separate appeals.

9. Heard the learned counsel on either side and also perused the materials placed on record.

10. The respondent-husband has come to the Court seeking divorce under the provisions of Section 13(1)(ia) of the Hindu Marriage Act, which reads as follows :

13. Divorce – (1) Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party-

(i) [has after the solemnized of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty ;or In support of the same, the respondent-husband has made the following allegations in the petition for divorce filed by him in F.C.O.P.No.114/2011 : "5. While facts are so in the year of 2009 the respondent had illicit intimacy with one S.Ragavan S/o.Sadasivam, at Sankar Nagar, Salem. The same was known to the petitioner from the information given by their neighbour's and house maid of his house owner. And due to the above act of the respondent the petitioner's reputation was defamed among their neighbours .The petitioner questioned the same but the respondent bluntly refused the same. But on 29.12.09 the petitioner has seen the adultery life of his wife with the said Ragavan with his own eyes when he returned from his business trip suddenly and the petitioner, on seeing the above illicit intimacy (sexual contact) was shocked and annoyed and started shouted the respondent and her boy friend Ragavan with grave anger but the respondent did not care and the respondent immediately told that she is ready and willing to give him divorce and requested the petitioner to allow her to go to her parent's house along with her sons.

6. After this instance the petitioner called his family friends, and relatives immediately and said the above matter and requested them to leave the respondent in her parent's house and the same was done by the petitioner's friend, and relatives on the same day itself, and very next day that is on 30-12-2009 an family panchayat was conducted in the house of their common friend and in the conclusion the respondent agreed to give the petitioner divorce but she said that she will only apply for the divorce in an different ground and that the petitioner should not object for the same."

11. In paragraph No.9 of the said petition, the respondent-husband would contend that the appellant-wife is continuing to have illicit intimacy with the said Raghavan till the date of filing of the petition.

12. That the respondent-husband (P.W.1) has filed a petition for divorce only on the ground of adultery is further fortified through his oral deposition during his cross-examination and the same would read as below :

",e;j kDit ehd ; vjph;kDjhuh ; gpwh;kid nehf;fpdhh ; vd;w xnu fhuzj;jpd; mog;gilapy;jhd; jhf;fy; bra;jpUf;fpnwd; vd;why; rhpjhd;/ me;j xU fhuzj;ij Twp kl;Lk;jhd; ehd; tpthfuj;J nfhhpapUf;fpnwd; vd;why ; rhpjhd;/ ,e;J jpUkzr;rl;lj;jpy ; Twg;gl;Ls;s ntW ve;j fhuz';fspd; mog;gilapy; ,e;j kDit ehd; jhf;fy; bra;atpy;iy/" "//krhM6 Kjy; 9 Mtz';fs; midj;Jk; ,e;j ,uz;L tHf;FfSk; jhf;fy; bra;jgpwF cUthd Mtz';fs; vd;why; rhpjhd;/" This statement is once again reiterated in the later portion of the evidence. The respondent-husband has also sought to establish the allegation of adultery by examining P.W.2 and P.W.3. Therefore, from the above, it is very clear that the respondent had come to Court seeking divorce only on the ground of adultery. Except for the plea on adultery, the petition does not contain any other averments in support of cruelty. The learned Family Court Judge has clearly held that this allegation of adultery has not been proved by the respondent- husband, as narrated supra.

13. A perusal of the evidence of P.W.2 and P.W.3 would clearly show that these witnesses have been engaged only for the purpose of supporting the case of the respondent with reference to adultery. However, in their cross- examination, they have fallen like a pack of cards. P.W.2 claims to be the close friend of appellant for over 8 years and he is running a paint workshop. He had admitted that he would visit P.W.1's house 4 to 5 times in a week for the purpose of collecting or handing over the car keys to the appellant, and that he would stand outside his house. This friend also deposed that he knew the father of P.W.1, but would plead that he does not know where P.W.1s father reside. In his chief examination P.W.2 has stated that he knew Ragavan as well his mother who stayed opposite to the house of P.W.1. But in his cross- examination, he had deposed that opposite to P.W.1s house, there is a medical shop and about 4 - 5 houses and that he has no knowledge about the inmates of the said houses. P.W.3 has also been examined to prove the allegations of adultery.

14. Interestingly, in his petition, the respondent has stated that he also came to know the illicit relationship of his wife with Raghavan through the house maid of his house owner. However, P.W.3, would state that she was the house maid in P.W.1s house and she had initially stated that she worked for 4 to 5 years in the house of the appellant and the respondent. However, she later retracts the statement and had deposed that she worked in their house only for a year. Further in her cross-examination she modifies the statement by stating that she had joined P.W.1's house as maid servant in 2009 after the Pongal Festival and would state that she left her job after receiving Deepavali bonus in 2009. This witness who claims to be the house-maid of P.W.1, does not know the name of the petitioner's second son. Further, during cross-examination, in response to a question, she has clearly deposed that she has been tutored for the cross examination by one "Vaathiyar" who had introduced her to P.W.1 and that the details contained in the proof affidavit are the one she was tutored to state by the said "Vaathiyar".

15. Therefore, the deposition of P.W.2 and P.W.3 clearly appears to be one that is concocted for helping the respondent to prove his case of adultery. The manipulation does not stop with the oral evidence. Ext.P8 is the letter alleged to have been received from the employer of the said Ragavan by P.W.1. Ext.P8 is sought to be marked to prove that the telephone nos. which has been quoted by respondent/P.W.1 in his chief-examination as belonging to the said Ragavan. Ext.P8 would read as follows : "nryk; khtl;lk;. uh$huhk; efhpy; trpj;J te;j jpU/S.uhftd;. j- bg/rjhrptk ; vd;gth ; 25?10?2009k ; njjp Kjy ; 30?01?2010 njjp tiu v';fspd; bgapd;l; filapy; tpw;gid gpujpepjpahf ntiy bra;J te;jhh;/ v';fs ; bgapz;l ; filf;F Vh;bly ; FGk ,izg;ghf 8 rpk;fhh;Lfs; bgw;nwhk;/ rpk;fhh;L vz;fs; 9500466911. 22. 33. 44. 55. 66.77 9500466988 tiu MFk;/ ,jpy; 9500466933 vd;w vz;iz jpU/uhftDf;F v';fspd; tpahghu gzpf;F gad;gLj;Jtjw;fhf jug;gl;lJ/ nkw;go egiu Ml;Fiwg;g[ eltof;iff;fhf 30?01?2010 Kjy; gzpapy; ,Ue;J tpLtpj;J tpl;nlhk;/ mth ; gzpapy ; ,Ue;j fhyfl;lj;jpy ; nkw;go miyngrp vz;iz jpU/uhftd; kl;Lk;jhd; gad;gLj;jp te;jhh;/ mth; jPh;f;fg;gl;l gpd;g[ me;j bjhiyngrp vz;iz eh';fs; ruz;lh; bra;J tpl;nlhk;/" Ext.P8 has not been marked through its author and nor the author had been examined on the side of the respondent. The same has also been marked subject to objection on the respondent's side. Further Ext.P6 to Ext.P9 came into existence after the filing of the divorce petition. The respondent-husband who had sought divorce on the ground of adultery and reiterated the same in his oral evidence, had failed to prove the same. Therefore, the petition filed by him ought to have been rejected, however, the learned Family Judge by introducing a new ground, though not pleaded by the respondent in his petition, has granted divorce, holding that the conduct of the appellant amounts to mental cruelty.

16. The Hon'ble Supreme Court in the case of Suman Singh Vs. Sanjay Singh reported in [(2017) 4 SCC 85], which was a case challenging the order of High Court of New Delhi, where the decree of dissolution of marriage in favour of the respondent-husband has been granted and the petition filed by the appellant-wife for restitution of conjugal rights was dismissed. During the arguments, the counsel for the respondent-husband therein had made an allegation that the respondent-wife was having a extra-marital relation and the same would amounts to cruelty, which plea was rejected. The Hon’ble Supreme Court has observed as follows : “21. In the first place, the respondent did not seek a decree of dissolution of marriage on these grounds. Second, the grounds of cruelty taken by the respondent in his petition does not include these grounds. Third, even if some stray allegations were made by the wife in her pleading/evidence as were relied upon by the learned counsel are of no relevance because, as mentioned above, these grounds were not pleaded in the petition by the respondent for seeking a decree of divorce and nor were put in issue; and lastly, the burden being on the respondent, the same could be discharged by the respondent by pleading and then proving. It was not so done. It is for these reasons, we cannot accept the aforementioned two submissions for affirming the decree of divorce. “

17. It is an axiomatic principle of law that the relief can be granted only with reference to the prayers made in the pleadings. The Court is bound by the pleadings and the evidence that is let in by the parties in support of these pleadings. In the case of Bachhaj Nahar Vs. Nilima Mandal and another reported in (2008) 17 SCC 491, the learned Judge observed as follows : “23. It is fundamental that a civil suit, relief to be granted can be only with reference to the payers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.,

24. In the absence of a claim by the plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that the plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High Court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage.”

18. The Division Bench of State of Telangana in a Family Court Appeal No.103 of 2016 was dealing with a case similar to the case on hand, where relief claimed was on the ground of desertion and subsequently, the relief alone was amended to include cruelty. The pleadings contained the allegation that

the appellant-wife therein had developed illicit intimacy with her brother-in- law. The Court observed that this plea has not been proved, but the Court proceeded to order dissolution of marriage on the ground of cruelty, which as already stated had only been included as relief, with no grounds to support allegation of cruelty. The Division Bench held that the Family Court cannot grant a decree for divorce without there being a pleading and evidence regarding cruelty.

19. As already discussed, the respondent-husband has not proved adultery and he has not sought divorce on the ground of cruelty. However, the Court below has been benevolent by granting the decree stating that the act of appellant was cruel. Further, even according to the respondent, there has been only one instance of illegal intimacy, whereas in the cause of action he has stated that the illegal intimacy is continuing till the date of filing of the petition. The learned Family Judge has failed to appreciate that adultery is a serious charge and causes an aspersion on the character of the spouse and a serious impact on the reputation of the spouse concerned in the Society. The children born out of this union is also subjected to a great deal of trauma. Therefore, it has to be proved beyond doubt. By allowing the petition for dissolution of marriage on the ground of cruelty not supported by pleadings, the learned Judge has caused grave injustice to the appellant herein. We therefore have no hesitation in allowing the appeals and set aside the order of the learned Family

Court Judge, Salem in 29/08/2016 in FCOP.No.114/2011 and FCOP.No.128/2011.

20. In the result, both the appeals are allowed and the impugned order of the Family Court, Salem dated 29/08/2026 are set aside. Consequently, the connected miscellaneous petitions are closed.

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

1. The Family Court Salem.

2. The Section Officer VR Section, High Court, Madras.

P.T.ASHA J. AND N.MALA J. DS CMA No. 219 of 2018 & CMA.No.220 of 2018 and CMP Nos. 2534 & 2535 of 2018 09-09-2026