Family Courts Have No Power To Grant Judicial Separation In Plea For Restitution Of Conjugal Rights: Madras High Court

The bench of Justice R Suresh Kumar and Justice AD Maria Clete noted that while Hindu Marriage Cat empowers the family court to grant a decree of judicial separation in a plea for divorce, no such power existed in a plea seeking restitution of conjugal rights.

“While the Hindu Marriage Act empowers the Court to grant a decree of judicial separation in a petition filed for divorce, no such power is contemplated in a petition filed for restitution of conjugal rights. In the present case, when the Family Court rejected the prayer for restitution of conjugal rights in H.M.O.P. No.1224 of 2024, it ought to have dismissed the petition as such, rather than granting judicial separation under that petition. The Family Court, however, proceeded to grant judicial separation in both the petitions, including one where the statutory framework does not permit such relief. It is also relevant to note that although the Family Court declined to grant restitution of conjugal rights, the respondent-wife has not filed any appeal challenging that finding,” the court said.

The court was hearing a petition filed by a husband challenging an order of the Family Court by which the Family Court had passed a common order of judicial separation in the plea for divorce filed by the husband and the plea for restitution of conjugal rights filed by the wife.

The husband argued that the family court had committed a legal error in granting the relief which was not sought for by either party instead of adjudicating on the specific prayers. He also pointed out that though the Family Court took note of his allegations that the wife had been leaving the matrimonial home and insulting him, the court had noted that such minor quarrels and interpersonal friction could not be construed as cruelty unless there was grave mental or physical suffering.

He had further contended that the wife exhibited persistent moroseness, deni9ed him conjugal companionship and frequently abused him using offensive and intemperate language. It was also submitted that the wife assaulted her husband by scratching him and even assaulted his parents. However, since his parents were not examined, the Family Court had not considered the evidence and granted judicial separation considering the fact that the parties had been living separately from 2013 and that the mutual accusations exchanged between them reflected a complete breakdown of marital relationship.

The court however found the reasoning of the family court unsustainable. The court noted that mere non-examination would not discredit the evidence when there was no material contradictions or admissions.

“The mere non-examination of family members cannot, by itself, discredit otherwise cogent and consistent testimony of the petitioner, especially when no material contradictions or admissions were elicited during cross examination to undermine his version. In the absence of any substantial challenge to the petitioner's credibility, his evidence could not have been discarded solely on the ground of non-examination of his parents,” the court said.

The court observed that the husband had established a clear case of mental cruelty as the wife's repeated verbal abuse, unfound allegations against the husband and institution of baseless complaints amounted to cruelty under Section 13(1)(ia) of the Hindu Marriage Act 1955. The court also noted that the prolonged separation of 14 years between the parties could not be ignored.

Thus, noting that the marriage had irretrievably broken down, the court allowed the husband's plea for divorce and set aside the order of judicial separation.

Counsel for Applicant: Mr. K. S. Karthik Raja

Counsel for Respondent: Mr. T. K. S. Gandhi

Case Title: ABC v XYZ

Citation: 2025 LiveLaw (Mad) 181

Case No: C.M.A.Nos.1422 & 1433 of 2021