C.M.A.(MD).No.403 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 11.12.2023

PRONOUNCED ON : 30.01.2024

CORAM:

THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

C.M.A.(MD)No.403 of 2020

S.Megala ... Appellant

Vs.

S.Sony Karkada @ Immanuel Gladston Karkada... Respondent

PRAYER : Civil Miscellaneous Appeal filed under Section 55 of the

Indian Divorce Act, 1869, to set aside the fair and decreetal order dated

11.03.2020 in I.D.O.P.No.85 of 2018 on the file of the learned Principal

District Judge, Dindigul.

For Appellant : Mr.R.Maheswaran

For Respondent : Mr.S.Pon Senthilkumar

JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellant/petitioner/wife, challenging the order passed by the learned

Principal District Judge, at Dindigul in I.D.O.P.No.85 of 2018 dated

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11.03.2020.

2.For the sake of convenience, the parties are addressed herein as

per the rank in I.D.O.P.No.85 of 2018.

3.The brief facts leading to the filing of I.D.O.P.No.85 of 2018 is

as follows:-

The petitioner states that the respondent is the husband of the

petitioner. The petitioner is an orphan and she was brought up at

Dhonavur Orphanage, Tirunelveli. In the year 1998, with the help of

friend Jeyaleela, she joined as a Manager at Sunny estate belonging to

the respondent husband. The respondent was already married to Dr.Mary

Rana bai. The respondent husband already got divorce from Dr.Mary

Ranabai in the year 1984 and thereafter, he has been living alone from

1984. While so, the petitioner was appointed as the Manager of the

respondent in 1988 and she started taking care of the respondent. Under

such circumstances, the petitioner and the respondent developed intimacy

between each other with the extent of having sexual relationship and

thereafter, the petitioner and the respondent solemnized their marriage on

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15.08.1989. They married as per Christian rites and customs in the

presence of the Christian Registrar of the Marriages and other two

witnesses and the same was duly recorded by the marriage solemnizer in

the Register of marriages. From the date of marriage, the petitioner and

respondent were living together as legally wedded wife and husband

leading a happy marital life for more than 25 years. However, they have

no issues. In the year 2016, the respondent started to develop illegal

relationship with one Kirubai Lily, who was working as Nurse at Dubai.

Apart from owning a farm in the name of Sunny Estate and Caroline

farms at Austinpatty, the respondent is also running two hotels namely

New Royal Hotel and Hotel Mahima and he is earning a sum of Rs.

2,00,000/- per month. He is a man of gaiety who extravagantly expend

money on various women as per his sweet will and thereby, satisfying his

lust. Whenever the petitioner interfered with his enjoyment, she was

subjected to harassment and she was brutally assaulted several times. On

one such occasion, on 09.01.2018, not able to withstand the gravity of

cruelty inflicted on her, she lodged a complaint before the All Women

Police Station, Kodaikanal. In the mean time, she fell down and sustained

injuries at her neck. For which, she has taken treatment and thereafter,

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C.M.A.(MD).No.403 of 2020

she was not able to involve in frequent intimacy with the respondent. As

the result of which, the respondent drove her out of her matrimonial

home on 01.07.2018. Though the petitioner has lodged a complaint on

02.07.2018 before the Superintendent of Police, Dindigul against the

respondent, no action was taken against him. From the date of desertion,

the petitioner has been struggling for her livelihood and hence, she filed

an application under Section 125 of the Criminal Procedure Code, before

the learned Judicial Magistrate, Kodaikanal seeking maintenance. The

sole intention of the petitioner is to live and die as the wife of the

respondent dutifully and hence, she took several steps to resume the

matrimonial ties with the respondent and all of which, failed and hence,

she filed this petition for restitution of conjugal rights.

4.The respondent husband had filed a counter denying all the

allegations in the petition. It was pleaded by the respondent that the

petitioner being an orphan, who suffered from many diseases including

eye, skin, fever, tonsils problem, etc., she was brought to the petitioner's

Sunny Estate by one Jeyaleela Karunya from Dhonaver Orphanage in the

month of May 1988 exclusively for the purpose of working as a house

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C.M.A.(MD).No.403 of 2020

maid thereby, taking care of the household works of the respondent. The

respondent sympathetically engaged the petitioner as his house maid and

provided her with food, shelter and dress and medical treatment and

monthly salary of Rs.650/- and gradually her salary was increased from

time to time and lastly she has drawn a salary of Rs.3,000/- per month.

Even though she was a servant, she used to address the respondent as

'daddy'. The question of appointing the petitioner as the Manager of the

respondent never arose, she had been his servant from the year 1988 till

13.07.2018. The allegation made by the petitioner recklessly that there

had been sexual relationship between the petitioner and respondent is

highly condemnable and the marriage certificate as produced by the

petitioner is a forged one. The petitioner had never been the wife of the

respondent at any time. However, with the malafide intention, she herself

had given particulars for the ID card of Voter card and Aadhaar card as

the wife of the respondent. Even though the respondent had taken care of

the petitioner with kind heart like a daughter, she had continuously

indulged in misbehavior and misappropriation against the respondent.

The respondent had also sent several registered letters to her and the

same were duly served and thereafter, she had sought apology and

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C.M.A.(MD).No.403 of 2020

continued as servant under the respondent till April 2018. The petitioner

has also filed petitions seeking maintenance under Section 125 of the

Criminal Procedure Code and domestic violence cases as against the

respondent for the purpose of getting huge amount and immovable

property from the respondent. All the litigations were initiated by the

petitioner with the malafide intention of looting the various properties of

the respondent.

5.The learned trial Court has framed two issues. The petitioner was

examined as P.W.1 and four documents Ex.P1 to Ex.P4 were marked on

the side of the petitioner. The respondent was examined as R.W.1 on the

side of the respondent and 22 documents Ex.R1 to Ex.R22 were marked.

The learned trial Court has marked the marriage which was duly

registered as per Marriage extract as Ex.P4. The petitioner's electoral

card was marked as Ex.P2 and Aadhar card was marked as Ex.P3

wherein the respondent's name is mentioned as husband. The learned

Trial Court recorded that the marriage between the petitioner and his wife

Dr.Mary Ramabai was not at all dissolved. Though he filed S.M.O.P.No.1

of 1995 on the file of the learned Principal District Judge, Dindigul for

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C.M.A.(MD).No.403 of 2020

dissolution of marriage, no divorce was granted in the said case.

Thereafter, the first wife died on 01.05.2015 and her death certificate was

marked as Ex.R7. The respondent had contended that he had married

Kirubai Lily on 20.09.2017 and he contended that the marriage was duly

registered. The respondent has categorically submitted that the petitioner

and the respondent had never been in sexual relationship with him at any

point of time. The sole intention of the petitioner is to grab his money.

All the documents showing the respondent as the husband of the

petitioner are forged and fabricated. The respondent had made a

representation to the District Collector to delete his name from being

mentioned as the husband of the petitioner in her Electoral card and

Aadhaar card. That apart the petitioner has filed D.V.O.P.No.6 of 2018

and M.C.No.2 of 2018 on filmsy grounds.

6.The leaned Trial Court also recorded that the respondent had

contended that the petitioner had taken away Rs.50,000/- and went to one

Chelladurai's house at Tirunelveli and thereafter, he has terminated her

from service and did not turn up for work. Therefore, the sole intention

of the petition seeking restitution of conjugal rights is with an intention

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C.M.A.(MD).No.403 of 2020

to grab money alone. The learned trial Court also recorded the fact that

S.M.O.P.No.1 of 1995 filed by the respondent seeking dissolution of

marriage from his first wife was dismissed on 05.08.2002 as per Ex.R2

suit register extract. In the meanwhile, the respondent's first wife

Dr.Mary Ramabai died on 01.05.2015 as per Ex.R6 death certificate. The

petitioner has pleaded in the petition before the learned Judicial

Magistrate in M.C.No.2 of 2018 that the marriage between the

respondent and his wife was dissolved on mutual consent. But in her

evidence, she has stated that 'vjpu;kDjhuupd; Kjy; kidtp Nkup

ukhgha; vd;why; rupjhd;. mtu; ,we;Jtpl;lhu;. Nkup ukhgha; ,wf;fk;

tiu vjpu;kDjhuUf;Fk; mtUf;Fk; tpthfuj;J Mftpy;iy vd;why;

mJ gw;wp vdf;Fj; njupahJ. tpthfuj;J Mfp tpl;ljhf vd;

fztu; nrhd;dhu;. Nkup ukh gha; 1.5.2015y; ,wf;Fk;NghJ

vjpu;kDjhuupd; kidtpahfj;jhd; ,we;jhu; vd;why; vdf;Fj;

njupahJ. mtUf;F tpthfuj;J Mdjw;fhf ve;j MtzKk; ehd;

ghu;f;ftpy;iy vd;why; ehd; ghu;f;ftpy;iy.'

7.The respondent has filed Ex.R2 petition register to show that

S.M.O.P.No.1 of 1995 filed by him against his wife Dr.Mary Ramabai for

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C.M.A.(MD).No.403 of 2020

divorce was dismissed on 05.08.2002. Further the petitioner in her

evidence deposed that 'kJiuapy; vjpu;kDjhuUf;Fk; Kjy;

kidtpf;Fk; mbjb tof;F ele;J te;J ePjpJiw eLtu;

ePjpkd;wj;jpy; epYitapy; ,Ue;j NghJ ehd; rhl;rp nrhd;Ndd;

vd;why; rupjhd;. 2014y; ehd; rhl;rpak; nrhd;Ndd;. me;j tof;F

kJiu M];bd;gl;bapy; cs;s fNuhypdh ghu;k;]; tPl;by; ele;j

rk;gtk; njhlu;ghf ele;jJ vd;why; rupjhd;. mg;NghJ ehd; me;j

tPl;by; ,Ue;Njd;. ePjpkd;wj;jpy; rhl;rpak; mspj;jNghJ vd; fztu;

ngau; vjpu;kDjhuu; vd;W nrhy;ytpy;iy vd;Wk; ehd; NlhdhT+u;

mdhij Mrpukj;jpy; tsu;e;jjhf nrhy;ypAs;Nsd; vd;why;

rupjhd;.'

8.The learned Trial Court proceeded to conclude that the evidence

of the petitioner would reveal that the respondent was living in Caroline

farms. It was clearly observed by the learned Trial Court that the

petitioner fully knowing the subsisting marriage between the respondent

and his first wife, has vexatiously and falsely submitted that the

respondent and his first wife got mutual divorce in the year 1984. On that

basis, the learned Trial Court concluded that the said Dr.Mary Ramabai

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C.M.A.(MD).No.403 of 2020

had been the wife of the petitioner till her death. It was further observed

by the learned Trial Court that on perusal of Ex.P4, marriage certificate,

signature of either party was not found in the certificate of marriage and

further observed that the the petitioner failed to produce the original

certificate of marriage. The learned Trial Court held that the respondent

ought to have examined the person, who solemnized the marriage and

atleast one of the witnesses to prove that the marriage was solemnized as

per Ex.P4.

9.Considering the facts and circumstances of the case, the learned

trial Court proceeded to conclude that Ex.P4 certificate of marriage was

not true. The learned Trial Court finally inferred that though the

petitioner did not examine any person to state that the petitioner and the

respondent lived together as husband and wife, the petitioner was also

not able to prove the marriage between the petitioner and the respondent.

Though the petitioner claimed that the respondent chased her away from

the matrimonial home, in the oral evidence she admitted that on

13.07.2018, she left home by given in writing to the respondent that she

was leaving to Tirunelveli. From all the evidences, facts and

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circumstances of the case, the learned trial Court held that the marriage

between the petitioner and the respondent was not solemnized and the

petitioner was not able to prove the solemnization of the marriage with

proper evidence and the learned Trial Court had dismissed the I.D.O.P.

10.Assailing the said judgment, the appellant/petitioner/wife has

preferred this Civil Miscellaneous Appeal.

11.Heard Mr.R.Maheswaran, learned counsel appearing for the

appellant and Mr.S.Pon Senthil Kumar, learned counsel appearing for the

respondent and perused the entire materials available on record.

12.The learned counsel for the appellant/petitioner vehemently

submitted that Ex.P1 to Ex.P3, electoral card, Aadhaar card and family

card are reliable piece of evidence to prove her relationship with the

respondent. He further contended that her case cannot be improved any

further by bringing in any document which is not part of the record.

Having hailed from a background with poor economic facilities, the

respondent having utilised her in all aspects and exploited her sexually

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and abused her psychologically and has now deserted her. Hence, sought

for setting aside the order passed by the learned Trial Court.

13.The earned counsel for the appellant/petitioner further

vehemently submitted that the learned Trial Court ought not to have

negated Ex.P1 electoral card, Ex.P2 Aadhaar card, Ex.P3 ration card and

Ex.P4 photo copy extract of marriage before the learned Principal

District Judge, Dindigul which was marked through P.W.1. Had the

marriage between the respondent and his first wife Dr.Mary Ramabai

subsisted even at the time when he lived with the petitioner, then

obviously all the members of the family would have been enrolled in the

electoral card and the absence of the same would prove that the

respondent had been the husband of the petitioner. He further contended

that the learned trial Court had misunderstood that she was paid salary

for the household chores of the respondent. It is learnt from the evidence

deposed by both the parties, it is only after the arrival of one Kirubai

Lily, the respondent started to harass his wife, since the petitioner wife

lodged a complaint before the All Women Police Station,

Kodaikanal. Since the petitioner left her matrimonial home, no further

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criminal case was registered. He categorically contended that by all

means, the petitioner had been the wife of the respondent and hence,

sought for allowing the appeal.

14.Per contra the learned counsel for the respondent/respondent

fully relying upon the verdict of the learned Trial Court pressed for

dismissal of appeal.

15.The case in hand is a pathetic life of an orphan who was

brought up in Dhonavur Orphanage at Tirunelveli District. On the guise

of helping her out, one Jeyaleela took her from Dhonavur Orphanage and

handed her over to the respondent for taking care of his household

works.

16.A careful perusal of the materials available in record and

I.D.O.P.No.85 of 2018 would reveal that on the date of filing of I.D.O.P.,

the petitioner was 54 years old and the respondent was 77 years old. No

doubt the said Jeyaleela has handed over the petitioner at her age of 34

years to the respondent who was then 57 years. A copy of the letter

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written by the petitioner to the respondent on 13.07.2018 was marked as

Ex.R13, in which the petitioner has referred the respondent as “Iah” and

no where from the entire letter any word of intimacy between a husband

and wife could be traced. That apart the marriage certificate marked as

Ex.P4 was also not duly proved by the petitioner. Exploitation of women

who are engaged as house maids for domestic work in private house by

the employer landlord physically and sexually is not an unknown social

problem.

17.The instant case in hand is the case of an orphan woman, who

was engaged by the respondent as his house maid and had become

intimate with the respondent. The submission of the petitioner having

been sexually exploited by the husband in the name of fake marriage

could not be negated. However, the petitioner miserably failed to prove

the legality of the marriage, which was alleged to have been solemnized

between her and the respondent on 15.08.1989. No doubt the marriage

certificate of a Christian Marriage will have a separate column for the

signature of the wedded couple. However, Ex.P4 marked by the

petitioner was not signed by the petitioner and the respondent. That apart,

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C.M.A.(MD).No.403 of 2020

the petitioner herself had admitted that the respondent was already

married to one Dr.Mary Ramabai and they got mutual divorce in the year

1984. However, Ex.R2, I.e the suit register extract of S.M.O.P.No.1 of

1995 on the file of the learned District Judge, Dindigul, filed by the

petitioner as against his wife Dr.Mary Ramabai seeking divorce would

reveal that the said S.M.O.P. was dismissed on 05.08.2002. Hence, it is

crystal clear that the marriage between the respondent and his wife

Dr.Mary Ramabai is subsisting and in addition to that, the petitioner in

her evidence admitted that she had deposed her evidence as witness in

the year 2014, in an assault case pending before the learned Judicial

Magistrate, at Madurai against the respondent's first wife and the said

criminal case was with respect to an incident which happened in the

house at Caroline farms at Austinpatty and that she was residing there at

that time. In the said case, she had admitted that she never addressed the

respondent as husband but on the other hand, she had deposed in her

evidence that she was brought up in Dhonaver Orphanage.

18.In view of the said admission, it is needless to say that the

petitioner had never been the legally wedded wife of the respondent and

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hence, the question of restitution of conjugal rights would not arise.

19.In view of the same, I am not inclined to interfere with the order

passed by the learned trial Court. Accordingly, the Civil Miscellaneous

Appeal stands dismissed. There shall be no order as to costs.

30.01.2024

NCC : Yes / No

Index :Yes / No

Internet:Yes

Mrn

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C.M.A.(MD).No.403 of 2020

To

1.The Principal District Judge, Thanjavur.

2.The Section Officer,

V.R. Section,

Madurai Bench of Madras High Court,

Madurai.

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C.M.A.(MD).No.403 of 2020

L.VICTORIA GOWRI, J.

Mrn

C.M.A.(MD)No.403 of 2020

30.01.2024

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