insistence by wife for setting up separate residence cannot be ground for granting divorce.
The division bench of Madras High Court said so. The excerpts are reproduced.
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE B.RAJENDRAN
Civil Miscellaneous Appeal No.3768 of 2004
Venkatasubramani .... Appellant.
vs.
Sreemathy .... Respondent.
JUDGMENT
R.BANUMATHI,J
This appeal arises out of the Judgment dated 20.7.2004 made in F.C.O.P.No.280 of 2003 on the file of II Additional Family Court, Chennai dismissing the Petition filed by the Appellant-husband under Sec.13(1) (i-b) of Hindu Marriage Act. Unsuccessful husband is the Appellant.
2. The marriage between the Appellant and Respondent was solemnized on 10.03.1991 in Chennai as per Hindu rites and customs. Out of lawful wedlock, two children one son and one daughter were born. Case of Appellant is that after the marriage, Respondent-wife was in the habit of leaving the matrimonial home and that she insisted for setting up a separate matrimonial home. For delivering the first child, she went to her parents house and she did not return back to the matrimonial house and during the month of July 1994, she left for her parents house without any reason and stayed for more than eight months. At the intervention of Police, she resumed cohabitation. Appellant has alleged that Respondent has attempted to burn her saree in gas stove and attempted to commit suicide and on another occasion, she poured kerosene on the body of the Appellant and always alleging as if the Appellant has been demanding dowry from her. On 28.02.1996, Respondent left the matrimonial house without informing the Appellant. Without any reasonable cause, Respondent deserted the Appellant and hence Petition under Sec.13(1) (i-b) of Hindu Marriage Act was filed seeking dissolution of marriage.
3. Denying the averments in the Petition, Respondent/wife filed counter contending that for 'Thaali Piritchu Korthal' function, she went to her parents house.
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5. Upon consideration of oral and documentary evidence, Family Court held that the husband cannot compel the wife to live along with her in-laws and that there is nothing wrong in asking to set up jdp Foj;jdk;/ Family Court further held that there was no genuine effort by the Appellant to get himself reunited and that there was no animus deserendi. Referring to Exs.P4 and P5, Family Court further held that Respondent never wanted divorce and that she only wanted restitution of conjugal rights. Finding that insistence for separate matrimonial home cannot be a ground for divorce, Family Court dismissed the Petition filed by the husband for divorce.
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........... In Ex.P.5 notice issued by the Respondent, she has stated that she is prepared to rejoin provided the Appellant sets up a separate residence.
17. Referring to Ex.P.5 notice, the learned Judge of family Court rightly held that there was no animus deserendi on the part of the Respondent so as to attract the ingredients of Section 13(1)(i-b) of Hindu Marriage Act. The Respondent, having not made any bonafide efforts to rejoin the Appellant, is not entitled to the relief. In fact, the Respondent is said to have filed petition in O.P.No.3506 of 2007 for restitution of conjugal rights, which the Appellant is said to be contesting. As rightly held by the learned trial Judge, insistence by the Respondent for setting up separate residence cannot be the ground for granting divorce. The findings of the trial Court are well balanced and based upon evidence warranting no interference.
18. In the result, the order dated 20.7.2004 of the II Additional Family Court, Chennai made in F.C.O.P.No.280 of 2003 is confirmed and the Civil Miscellaneous Appeal is dismissed. However, there is no order as to costs. (R.B.I.,J.) (B.R.,J.)
02.07.2010
