madras high court

Madras High Court: In an appeal filed under Section 19 of the Family Courts Act, 1984 read with Section 28(4) of the Hindu Marriage Act, 1955 against the order dated 13-10-2017 by the Family Court, wherein the Court held that levelling allegations of illicit relationship against the spouse, amounts to mental cruelty and granted relief on the ground of irretrievable breakdown of the marriage, the division bench of RMT. Teekaa Raman* and P.B. Balaji, JJ. while setting aside the impugned order, said that the order of dissolution of marriage passed by the Family Court is legally unsustainable as the reason of levelling of allegation of illicit relationship is not the case of the husband, however, the same was taken as a ground by the judicial officer for granting the relief.


The husband had filed for dissolution of marriage on the ground of cruelty and under Section 13(1)(ia) of the Hindu Marriage Act. Further, the wife had filed counter statement stating that due to civil dispute in respect of undivided share in the house at the instance of the brother of the husband, the case has been filed and maintenance was awarded to her and two daughters, however, the husband has not paid the same.

The Family Court noted that the parties are living separately for more than 12 years, and she has made false allegation that the husband is having an illicit relationship with one of his co-employees and uttered that he is also having another relationship with another lady.

The Court noted that the wife has preferred the appeal primarily on the ground that irretrievable breakdown of marriage is not a ground stated under the HMA, instead, contended that only the Higher Courts in their exercise of power under Article 142 of the Constitution of India can do so. Furthermore, the plea of desertion was not taken by the husband, however, the Family Court has discussed the same in detail,. Further, the reason of levelling of allegation of illicit relationship is not the case of the husband however, the same was taken as a ground only by the judicial officer for granting the relief.

The Court noted that it is the specific case of the wife that few weeks before the filing of the divorce petition, the first daughter’s puberty function was conducted in the house and after the function, his wife along with his two children continued to live in the house, however, her husband has not returned home. Thereafter, the wife and her two daughters were sent out of the matrimonial home forcibly. Therefore, the Court said that the husband, who had caused cruelty on the wife.

The Court said that the family Court Judge seems to have considered the husband’s case but took a loophole in the wife’s written statement and held that she has not proved her pleadings and declared this approach as erroneous and set aside the same. Thus, the Court set aside the finding of the Trial Court that the wife has not proved the illicit relationship, on the facts and circumstances of the case.

The Court said that the Family Court has taken pains to discuss at length about the alleged desertion, forgetting the fact that it is the wife and children, who have joined the husband, and it is he who left the matrimonial home leaving the wife and children. Thus, the desertion of the wife is proved. The Family Court has discussed the fact of continuous desertion over 12 years under Section 13(1)(b) of the HMA, which was not pleaded in the petition.

The Court said that the wife was always ready and willing to live with the husband along with two children. It is the husband, who is running away from the matrimonial home without discharging his duty and responsibility as a husband.

The Court noted that the husband has not included the name of the wife and children in the Service Register to enjoy certain facilities offered by the railways to the family staff, and said that this attitude of the husband assumes significance as he never intended to lead a peaceful/joint life with the wife and children by taking care of them as a dutiful husband.

The Court said that the non-resumption of the parties is true due to the act committed by the husband and not by the wife and hence, he cannot be allowed to take advantage of his own wrong, which is prohibited under Section 23(1)(a) of the HMA and therefore, alleged cruelty leading to the irretrievable breakdown of marriage is not made out in this case. Accordingly, the Court rejected the contention of the husband.

[X v A, CMA(MD) No.1121 of 2017, decided on 22-12-2023]

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One comment

  • Men are not Dogs so pls do some laws in favor of Men too or the day come There will be no person will come to Court for Justice take law in his hands to get justice in the most peaceful way by boycotting women and Religious activities.

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