Certain Limitation Period Needs To Be Fixed For Filing Counter Relief For Divorce Or Restitution Of Conjugal Rights: Madras HC

The Madras High Court said that a certain period of limitation needs to be fixed for filing the counter relief namely for the divorce petition / or / counter relief of restitution of conjugal rights.

The Madurai Bench was deciding civil miscellaneous appeals filed by a man under Section 19 of the Family Courts Act, 1984 against the judgment of the First Additional District Judge in charge of the Family Court.

A Single Bench of Justice RMT. Teekaa Raman observed, “… we find that certain period of limitation has to be fixed to curb this evil designed practice before the Family Courts which is consuming large hours of the family court and also causing innumerable years of delay in disposal of the Original Petition and hence, we find that the High Court Rules Committee (Civil) shall look into the matter and prescribe a limitation period that, in the event of any application being filed by one of the spouses to the marriage and that summons have been served on the opposite party, shall commence the point of limitation for filing the counter relief namely for the divorce petition / or / counter relief of restitution of conjugal rights and vise versa, to suggest, viz a period of 9 months to 1 year may be fixed, since it has become almost a regular practice before the Family Courts in mofusil areas to file another case between the very same parties seeking the counter relief only at the fag end of the trial of the first proceeding.”

The Bench remarked that it has become the habit/trend before the Family Court that the first case instituted by one of the spouses is for restitution or for divorce.

Advocate P. Athimoolapandian appeared on behalf of the appellant while Advocate M. Michael Bharathi appeared on behalf of the respondent.

In this case, the marriage between the parties was solemnised in 2006 and at that time the wife was working as Judicial Officer whereas the husband was doing a business. A female child was born in 2007 out of the said wedlock. The wife filed a plea in 2014, seeking the relief of divorce stating that there was a misrepresentation of educational qualification of her husband and that he also demanded dowry. However, the specific plea of living separately for more than 7 years amounting to irretrievable breakdown of marriage was also taken. On the contrary, the husband contended that he was subjected to cruelty and humiliation at the instance of his wife’s mother and sister.

In the restitution petition, he specifically averred that a false complaint was instituted by his wife and that she misused her power attached to the post. The husband and his brother filed a complaint against the wife before the Chief Judicial Magistrate. Before the Family Court, a specific case was projected by the wife that the husband had forcibly entered into the house and attacked her, mother, and sister. The Family Court granted divorce by allowing the petition of wife and dismissed the restitution of conjugal rights petition of the husband. Being aggrieved, the husband filed appeals.

The High Court in view of the facts and circumstances of the case enunciated, “… we have no hesitation in our mind to hold that the appellant-husband is a wrong doer and committed cruelty to wife and is not in a position to give matrimonial bliss by means of co-habitation with the wife. … Certain allegations have been made by the husband that the matrimonial tie between the parties went into rough weather after the husband has rejected the proposal made by mother in law regarding the younger daughter to get married to the younger brother of the appellant-husband.”

The Court added that once a mother who sees the elder daughter being ruined by the son in law, no prudent mother will go for marriage proposal of another daughter for the younger brother of the son in law.

“… the trial Court has rightly come to the conclusion that the appellant has treated the wife with cruelty and the wife has committed no mistake, except for the fact that she is working as a Judicial Officer and the husband wanted to cover up all his misdeeds by alleging falsely that the wife as a Judicial Officer assumed upper hand and misused her power and hence, we find no merits in these appeals”, it noted.

Before parting with the judgment, the Court said that there is no limitation for filing a petition for restitution of conjugal rights or a divorce application by either of the spouse and when a proceeding has been initiated by either of the spouse before the Family Court, the other spouse will resort to the counter relief, namely when the case is filed for dissolution of marriage, the other spouse will file a petition for restitution of conjugal rights and vice versa.

“The parties will go for completion of the pre-trial proceedings as contemplated in the Family Court Act and after examination of the petitioner's side is over, instead of getting into the box and complete the trial, the opposing spouse, files a petition at that stage as a new application, even at that stage of the cross examination of R.W.1. The Family Courts are bound by the procedures laid down in the Act and once again, the second case filed by the opposite party has to go through the pre trial proceedings in view of the provisions contained in the Family Court Act and further delay the determination of the matrimonial proceedings before the Family Courts”, it emphasised.

Accordingly, the High Court dismissed the appeals, confirmed the impugned orders, and directed the Registry to place the order copy for consideration of the Chief Justice for referring the matter to Rule Committee (Civil) for consideration so that all the stake holders involved are heard before the Committee and a decision be taken for such aspects.

Cause Title- S v. A

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