CMA(MD) NOs. 1087 and 1123 of 2022 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21-03-2025 CORAM THE HONOURABLE DR JUSTICE G. JAYACHANDRAN AND THE HONOURABLE MS.JUSTICE R. POORNIMA CMA(MD) NOs. 1087 and 1123 of 2022 and CMP(MD)NO.11463 of 2022 Kalirajan @ Rajan Demathew ... Appellant in both C.M.A.(MD) Vs K.Mary Fora ... Respondent in both C.M.A.(MD) Prayer in C.M.A(MD).No.1087 of 2022: This Civil Miscellaneous Appeal has been filed under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order passed in I.D.O.P.No.3 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022 and grant an order of decree under Section 10(1)(x) of Divorce Act, 1869. Prayer in C.M.A(MD).No.1123 of 2022: This Civil Miscellaneous Appeal has been filed under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order passed in I.D.O.P.No.16 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022 and grant an order of decree under Section 32 of Divorce Act, 1869. For Appellant : Mr.T.S.Mohamed Mohideen (in both C.M.A.(MD) For Respondent : M/s.U.Nirmalarani (in both C.M.A.(MD) https://www.mhc.tn.gov.in/judis ORDER (Order of the Court was made by the Hon'ble G.Jayachandran J.) By this common order both the civil miscellaneous appeals are being disposed of. 2. I.D.O.P.No.3 of 2019 was filed by the petitioner/husband under Section 10(1)(x) of the Indian Divorce Act, 1869 and I.D.O.P.No.16 of 2019 filed by the wife/respondent under Section 32 of the Indian Divorce Act, 1869 for the restitution of conjugal rights . 3. The facts of the case is that on 02.09.2013, the marriage between the petitioner and the respondent got solemnized as per Christian rites. According to the petitioner/husband, marriage was not consummated due to non-cooperation of the respondent/wife. The respondent/wife left the matrimonial home and stayed with her parents for a while. Thereafter, she returned to her matrimonial home on 04.06.20214 but was behaving erratically and causing mental cruelty. When the petitioner/husband enquired about the same, he found that the respondent/wife had already married another person and got divorced. By suppressing all these facts, the respondent/wfie had married the petitioner/husband but refused to cohabit with him. 4. In the I.D.O.P.No.16 of 2019 filed by the respondent/wife for restitution of conjugal rights, she has contended that after solemnization of marriage, the matrimonial home was set up in a portion of the small house, wherein the parents were also residing and the reason for non-consummation of marriage was for want of privacy. Thereafter, five kilometres away from her native, separate home was set out in a rented house and they https://www.mhc.tn.gov.in/judis were living happily. However, due to the ill advice of her mother-in-law, the petitioner/husband started treating her indifferently and even after she got conceived, she was not provided with enough care. The fetus was aborted due to the ill treatment. Thereafter, when she along with her parents went back to the matrimonial home, she was not received by the petitioner/husband due to ill advice of the in-laws. The efforts taken by the elders in the Church did not yield any result. Since the petitioner/husband has willfully withdrawn from the matrimonial company, an order of restitution of conjugal rights sought. The Trial Court on petition took up both the cases together and conducted common trial. On considering the evidence, the Trial Court allowed the petition filed by the respondent/wife for restitution of conjugal rights and dismissed the petition filed by the petitioner/husband for divorce. 5. The contention of the petitioner/husband that the earlier marriage of the respondent/wife with one Jones @ Ponniah was suppressed and his marriage was solemnized when the earlier marriage was in subsistence was rejected by the Trial Court stating that the petitioner/husband has married the respondent/wife only after knowing the resolution of the earlier marriage. 6. The learned counsel appearing for the appellant would submit that the findings of the Trial Court are factually wrong. On the date of solemnizing the marriage, the marriage between Jones @ Ponniah and K.Mary Flora/respondent/wife was in subsistence. That fact was not only suppressed when the earlier marriage is in subsistence, the subsequent marriage on the phase is illegal and void. https://www.mhc.tn.gov.in/judis 7. He further referred to Section 19(4) of the Indian Divorce Act, 1869 and submits that the marriage between Jones @ Ponniah and K.Mary Flora/respondent/wife was in force as on 02.09.2013. However, the Trial Court had erroneously believed the evidence of K.Mary Flora/respondent/wife that her earlier marriage got dissolved in the month of February 2013 itself. To substantiate his submission, the learned counsel for the appellant furnished copy of the divorce decree passed in IDOP No.46 of 2013 dated 20.12.2013 filed by K.Mary Flora/respondent/wife against Jones @ Ponniah before Principal District Court, Thanjavur. 8. To refute the above contention, the learned counsel for the respondent though entered appearance by name U.Nirmala Rani, but not able to furnish any contra documents. It is also now stated by the counsel appearing for the appellant that the respondent/wife herself has initiated divorce proceedings before Principal District Court, Thanjavur in IDOP No. 17 of 2025. He would further submits that the petition for restitution of conjugal rights filed by the respondent/wife in IDOP No.16 of 2019 was allowed on 24.08.2022 vide common order. Even after lapse of three years, she has not taken any steps for enforcing the decree of restitution of conjugal rights. On the cumulative assessment of the facts, we find that there is a gross suppression of facts regarding the subsistence of the earlier marriage. On misrepresentation to the Court, the respondent/wife had succeeded in getting the divorce petition dismissed. On the date of the marriage between the appellant/husband and the respondent/wife that is on 02.09.2013, the respondent/wife marriage with Jones @ Ponniah was in force. While so, the marriage between the appellant/husband and the respondent/wife on 02.09.2013 is null and void is liable to be dissolved in the light of https://www.mhc.tn.gov.in/judis Section Section 19(4) of the Indian Divorce Act, 1869. 9. With these observations, both the Civil Miscellaneous Appeals stands allowed. No costs. Consequently, connected miscellaneous petition is closed. [G.J.J.,] [R.P.J.,] 21.03.2025 NCC :yes/No Index :yes/No Internet:yes/No rgm https://www.mhc.tn.gov.in/judis DR.G.JAYACHANDRAN, J. and R.POORNIMA, J. rgm To The Family Court, Thanjavur CMA(MD) NOs. 1087 and 1123 of 2022 and CMP(MD)NO.11463 of 2022 21.03.2025 https://www.mhc.tn.gov.in/judis