SEKAR REPORTER

Court News from Madras High Court

Family case Full order of THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR. JUSTICE R.VIJAYAKUMAR   C.M.A.No.2988 of 2021 R.Kalaiselvi. –We have no hesitation in concurring with the findings of the learned Family Court Judge. All the grounds raised by the learned counsel for the Appellant in the Appeal relates to the factum of proving the marriage and also to prove the marriage through conduct of the parties. The counsel for the Appellant also contended that the parties are living together from the year 2013 onwards. When the marriage has not been solemnized under any one of the enactments, even assuming that there was long and continuous cohabitation or the parties were living together will not give rise to a cause of action for filing an application for restitution of conjugal rights. Long cohabitation or living together will not confer upon the parties any legal right to raise a matrimonial dispute before the Family Court, unless their marriage has been solemnized in a manner known to law. In view of the above said facts, this Civil Miscellaneous Appeal stands dismissed. There shall be no order as to costs.                                 

by ·

Sekarreporter

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON 21.10.2021
DELIVERED ON 02.11.2021

 

CORAM:

 

THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN

AND

THE HONOURABLE MR. JUSTICE R.VIJAYAKUMAR

 

C.M.A.No.2988 of 2021

 

R.Kalaiselvi

W/o. Joseph Baby

D.No.17/33, Auto Nagar 2nd  Street,

Vadavalli Road,

Idayarpalayam,

Coimbatore – 641 025.                                                                  … Appellant

 

vs.

 

Joseph Baby

S/o.Joseph

D.No.799, K.K Block,

T.K.Market, R.G Street,

Coimbatore – 641 001.                                                               … Respondent

 

Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act, 1984 against the Fair and Decreetal Order dated 14.02.2019 made in I.A.No.560/2018 in D.O.P.No.796/2017 on the file of the Hon’ble Additional Principal Family Court, Coimbatore.

 

For Appellant     :         Mr.S.Mukunth

for M/s.Sarvabhauman Associates

 

* * * * *

 

JUDGMENT

 

R.VIJAYAKUMAR, J.,

The Appellant had filed D.O.P.No.796 of 2017 before the Family Court, Coimbatore as against the respondent for the relief of restitution of conjugal rights under Section 32 of the Divorce Act 1869. Pending D.O.P.No.796 of 2017, the respondent herein had filed I.A.No.560 of 2018 to reject the petition on the ground that it is a clear abuse of process of law. A counter was filed by the Appellant herein. After hearing both the parties, the Additional Principal Family Court, Coimbatore has allowed I.A.No.560 of 2018 and consequently rejected the D.O.P.No.796 of 2017. As against the said order, the present Appeal has been filed by the Appellant.

 

  1. The Appellant herein, in her petition has contended that she got married to the Respondent on 17.12.2013, in the presence of close relatives and friends. The Appellant had further contended that they got married through exchange of rings and the Respondent put on metti in her toes. The Appellant had also contended that she was already married to a person and the said husband had abandoned her and thereafter, she had obtained divorce through Court. The Appellant had further contended that on various occasions she had given a large amount of money to the respondent herein, for conducting business. But, from May 2016 onwards, the respondent is residing away from the Appellant without any sufficient cause and hence, she approached the Court with the prayer for restitution of conjugal rights.

 

3.The Respondent herein, in his affidavit for rejection of the petition, has disputed the marriage and also the money transactions between the Appellant and the Respondent. The Respondent herein contended that he had filed a Civil Suit before the III Additional District Munsif Court, Coimbatore in O.S.No.882 of 2017, seeking a relief to restrain the Appellant herein from in any way propagating that the Respondent is married to the Appellant. The Respondent herein has further contended that no marriage has taken place between him and the Appellant. It was also contended that even as per the petition, the Respondent is a Christian and the Appellant is a Hindu. The marriage has not been solemnized either as per the Hindu customs or under the Christian Marriage Act. The marriage being an        inter-religious one, has not been solemnized even under the Special Marriage Act, 1954. The Respondent further contended that the Appellant has not disclosed even the name of her previous husband in the legal notice dated 08.07.2016. But, in the reply notice sent by the Appellant, the Appellant has named her husband as H.Raghu. The Respondent further contended that one R.Rajasekaran has initiated proceedings under Section 138 of the Negotiable Instruments Act, in C.C.No.585 of 2016 before the Judicial Magistrate Court No.VI, Coimbatore. Even in the said proceedings, the Appellant has named her husband as one H.Raghu, and not that of the Respondent herein. The Appellant herein filed a counter to the said application, disputing the averments in the rejection petition.

 

  1. The learned Family Court Judge has first taken up the issue whether there was a valid marriage for filing an application for restitution of conjugal rights under Section 32 of the Divorce Act, 1869. The learned Family Court Judge has pointed out that both the parties belong to different religion even as per the averments in the petition and hence, there was no valid marriage under any one of the Matrimonial Laws governing the inter-religious marriages. The learned Trial Judge has given specific finding that it is not a valid marriage, but a void one. The learned Judge has also pointed out that though the Appellant claims to be a Hindu and contends that Hindu form of marriage was followed, yet, she has chosen to file an application under Section 32 of the Divorce Act, 1869, as if, it is a Christian marriage. The learned Judge has proceeded to allow the rejection petition on the ground that the alleged marriage is not a valid one and hence it will not give rise to any cause of action for filing an application for restitution of conjugal rights.

 

  1. The learned counsel for the Appellant contended that a valid marriage has taken place between the parties and hence, the Appellant is entitled to file an application under Section 32 of the Divorce Act, 1869.

 

  1. The Family Court can entertain an application only when the nature of suit is as per the explanation to Section 7 of the Family Courts Act, 1984. As per, Section 7 (1) (a) of the Act, a suit or proceeding between the parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage is maintainable before a Family Court. On the other hand under Section 7 (1) (b) of the Act, a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person before a Family Court, is also maintainable.

 

  1. It is a settled position of law that, even if one of the parties is a Christian by religion, the marriage could be conducted under the Christian Marriage Act. Only if the marriage has been solemnized under the Christian Marriage Act, the petition can be filed invoking the provisions of the Divorce Act. It is a settled position of law that a petition or a suit or a plaint can be rejected only on the basis of the averments in the petition along with the documents filed with the petition. In the present case, a reading of the petition in D.O.P.No.796 of 2017 discloses the following facts:

 

(i) The Appellant belongs to Hindu Religion and the Respondent belongs to Christian Religion.

 

(ii) The Appellant is already married and she has been deserted by her first husband.

 

(iii) The Appellant is having two sons.

 

  1. The marriage is said to have taken place on 17.12.2013 by exchange of rings and as well as following certain Hindu rituals. Paragraph No.11 to 17 of the petition indicate various money transactions between the Appellant and the Respondent and does not relate to any matrimonial dispute. A reading of the counter in I.A.No.560 of 2018 will clearly indicate that the Appellant has admitted that she has issued a legal notice to the Respondent on 19.01.2017, with regard to business disputes and about issuance of eleven cheques as security for business transactions. In the said notice, the Respondent herein is not referred to as the Appellant’s husband.

 

  1. The facts narrated above will clearly indicate that if really the marriage had taken place between the Appellant and the Respondent on 17.12.2013, the legal notice dated 19.01.2017 would have clearly indicated about the marital relationship between the parties. The Respondent herein had issued a legal notice on 24.01.2017 denying all the allegations with regard to the money transactions and thereafter, the Appellant has chosen to file a complaint before the Police on 29.05.2017, alleging misuse of cheque. Only in the said complaint, the Appellant has chosen to refer the Respondent as her husband.

 

  1. The above facts would clearly indicate that there is no marriage at all between the Appellant and the Respondent and due to some enmity arising out of some money transactions, the present petition under the Divorce Act for restitution of conjugal rights has been filed. Moreover, though the Appellant has claimed that she had obtained a decree for divorce from her first husband, she has not chosen either to file the copy of the order or even refer the date and case number in her petition. These facts will clearly point out that the Appellant herein is a married woman and she has been deserted by her husband and she has not obtained divorce through Court. This will clearly show that the Appellant continues to be the wife of another person whose name, the Appellant has not chosen to disclose. On the date of filing of the petition, the Appellant is 42 years old and the Respondent is 52 years old. Taking into consideration of the said facts, the Court can easily come to a conclusion that there was no marriage between the Appellant and the Respondent. That apart, the Family Court has got jurisdiction to entertain the proceedings for restitution of conjugal rights only between parties to a marriage. In the present case, this Court has already observed that there is no marriage at all between the Appellant and the Respondent herein. In such circumstances, the Family Court does not have any jurisdiction to entertain an application for restitution of conjugal rights. The Appellant may have a right to invoke the jurisdiction at the Family Court, if she wanted to declare her matrimonial status, but, in the present case, she has not sought to declare her matrimonial status, but, she just seeks a decree for restitution of conjugal rights on the assertion that she has already married the respondent herein.

 

  1. The learned Trial Judge, after going through the averments in the Divorce Original Petition and also the averments in I.A.No.560 of 2018 and the counter filed by the Appellant herein, has given a clear finding that there is no valid marriage between the Appellant and the Respondent and there is no cause of action or any triable issue in the petition.

 

  1. We have no hesitation in concurring with the findings of the learned Family Court Judge. All the grounds raised by the learned counsel for the Appellant in the Appeal relates to the factum of proving the marriage and also to prove the marriage through conduct of the parties. The counsel for the Appellant also contended that the parties are living together from the year 2013 onwards. When the marriage has not been solemnized under any one of the enactments, even assuming that there was long and continuous cohabitation or the parties were living together will not give rise to a cause of action for filing an application for restitution of conjugal rights. Long cohabitation or living together will not confer upon the parties any legal right to raise a matrimonial dispute before the Family Court, unless their marriage has been solemnized in a manner known to law.
  2. In view of the above said facts, this Civil Miscellaneous Appeal stands dismissed. There shall be no order as to costs.                                 

 

[S.V.N.J.,]     [R.V.J.,]

                                                                                                   02.11.2021           

Index                     :         Yes / No

Internet:                           Yes

Speaking Order          :         Yes / No

 

(rap/ssn)

 

 

 

To

The Additional Principal Family Court,

Coimbatore.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

S.VAIDYANATHAN,J.,

                                                                                                AND

R.VIJAYAKUMAR,J.,

 

(rap/ssn)

 

 

 

 

 

 

 

 

 

 

 

 

Pre-Delivery Judgment in

C.M.A. No.2988 of 2021

 

 

 

 

 

 

 

 

 

 

02.11.2021

 

You may also like...