CMA/3338/2021 of E. MUTHUSWAMY Vs K. SHYAMALADEVI on 13 October 2026

COMMON JUDGMENT

(Judgment of the Court was delivered by M.Dhandapani J.) These Civil Miscellaneous Appeals have been filed against the orders and decrees dated 09.04.2021 and 17.04.2023 respectively passed by the V Additional Family Court, Chennai in O.P.Nos.1437 of 2018 and 1240 of 2021, whereby the petition filed by the appellant seeking divorce by dissolution of marriage solemnised between the appellant and the respondent, came to be dismissed by the court below and the petition filed by the respondent seeking restitution of conjugal rights came to be allowed by the court below.

2. The marriage between the appellant/husband and the respondent/wife was solemnised on 06.12.2009 as per Hindu Rites and Customs. Out of the said wedlock, a male child named Sanjeeshwa was born to them on 07.02.2010. After marriage, they set up a matrimonial home at Triplicane. At the time of marriage, the appellant was employed as a family programme counsellor on consolidated pay of Rs.8,000/- at Railways, on temporary basis, whereas the respondent is a Government employee working as a Staff Nurse at Rajiv Gandhi Government Hospital, Chennai. After the marriage, the respondent had given all sorts of troubles and bottlenecks to the appellant in order to make his temporary job as she felt that no point of time he should neither be equivalent nor above her and he must be always a bonded labour to her. The respondent used to threaten the appellant that she will commit suicide. Therefore, the appellant filed a petition seeking divorce on the ground of cruelty u/s 13 (1) (i-a) of the Hindu Marriage Act, 1955 in O.P.No.1434 of 2018 on the file of the II Additional Family Court, Chennai, which came to be dismissed, vide order, dated 09.04.2021. After the filing of divorce petition filed by the appellant, the respondent had filed a petition seeking restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 and the same was allowed, vide order, dated 17.04.2023. Aggrieved by the said orders, the appellant has filed the present appeals.

3. The learned counsel appearing for the appellant submitted that in order to improve his career, the appellant decide to go to Dubai to earn a higher salary. However, the respondent successfully prevented the same by lodging a complaint before the law enforcing agency, thereby, inflicting cruelty upon the appellant. Consequently, the appellant filed a divorce petition before the family court. Furthermore, he submitted that the respondent had deserted the appellant from the year 2015 onwards, prompting the appellant to file the divorce petition in 2018. Without proper adjudication, the family court erroneously dismissed the petition, which is unsustainable in law. He further submitted that though the petition filed by the respondent seeking restitution of conjugal rights was decided in favour of the respondent, till date, she has not taken any steps to execute the said order. This shows that the respondent is not inclined to live with the respondent. Accordingly, he prays for allowing these appeals.

4. Per contra, the learned counsel appearing for the respondent submitted that the respondent discharged her matrimonial duties as a devoted wife, even without relying solely on the income of the appellant. In fact, the respondent had utilised her entire salary for the advancement of both of their careers and to ensure the welfare of their child. However, all of a sudden, the appellant decided to go to Dubai, effectively deserting the respondent in the year 2015, which was actually not prevented by the respondent. Even then, he went to Dubai in the year 2015 and returned in the year 2018 to file a divorce petition on the ground of cruelty, which itself shows that the appellant deserted the respondent to pursue personal ambitions abroad. Consequently, the family court rightly dismissed the divorce petition on the ground that the appellant failed to prove cruelty while rightly allowing the respondent’s petition for restitution of conjugal rights, and hence, the said orders require no interference. He therefore prays for the dismissal of the appeals.

5. Heard the learned counsel appearing for the appellant as well as the respondent and perused the materials available on record.

6. There is no dispute regarding the marriage between the appellant and the respondent. The first ground raised by the appellant relates to mental cruelty arising out of a police complaint. It is a settled position of law that the mere filing of a complaint before a law enforcement agency by a spouse does not automatically equate to cruelty, unless it is proved to be demonstrably false, malicious, and designed to cause ignominy. The record reveals that the appellant did, in fact, travel to Dubai in 2015 and remained there until 2018. Thus, the allegation that the respondent successfully prevented his career advancement remains an unproven assertion. The respondent's recourse to an agency, in the context of a spouse leaving the country, cannot be deemed cruelty in the absence of clear evidence showing malicious intent to harass.

7. Regarding the ground of desertion, the appellant must establish two essential elements, i.e., the factum of separation and the intention to desert (animus deserendi) on the part of the respondent without reasonable cause. The timeline established by the evidence points to the contrary. The appellant left the matrimonial home to pursue employment in Dubai in the year 2015. A wife who remains in the matrimonial home, caring for the child and contributing financially, cannot be accused of desertion simply because the husband chooses to relocate overseas. The separation was initiated by the appellant's physical departure. Therefore, the ground of desertion fails.

8. The appellant’s argument that the respondent's failure to file an execution petition proves her lack of intent to reconcile is legally untenable. A decree for the restitution of conjugal rights is an equitable remedy aimed at declaring the rights of the parties and encouraging reconciliation. The executing court cannot physically compel cohabitation. The non-filing of an execution petition by a wife who has already successfully established her willingness to live with her husband before a court of law cannot be used by the defaulting husband as a weapon to demand divorce.

9. The Family Court has correctly analyzed the evidence on record, concluding that the appellant failed to discharge the burden of proving cruelty and desertion. Consequently, the dismissal of the divorce petition and the granting of the decree for the restitution of conjugal rights are based on a sound appreciation of matrimonial jurisprudence and require no interference by this Court.

10. In the light of the foregoing discussion, both Civil Miscellaneous Appeals are dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. (M.D.I.,J.) (A.D.M.C.,J.) 13-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No sp To The II Additional Family Court, Chennai.

M.DHANDAPANI J. AND DR.A.D.MARIA CLETE J. sp C.M.A.Nos.3338 of 2021 & 1217 of 2023 and C.M.P.Nos. 19047 of 2021 & 11930 of 2023 13-10-2026