S. JAYALAKSHMI Vs. T. PRAKASH RAO

JUDGEMENT

(1.) S. Jayalakshmi, the appellant, married respondent T. Prakash Rao on 3/5/1974. Two daughters were born out of the wedlock who are aged about 20 years and 18 years. Unfortunately the parties fell apart and sometime in the year 1978 the husband filed a divorce petition on the ground of mental cruelty and also that the wife was of unsound mind. An ex parte decree was granted on 3/8/1978. Thereafter the husband remarried on 8/10/1978. The appellant did not file any application for setting aside the ex parte decree and instead filed a suit for maintenance some time in the year 1979. In the said proceedings Rs.50.00 per month each was finally granted as maintenance to the two daughters. In 1984 the appellant filed an application for setting aside the ex parte decree. The application was not pressed. Thereafter on 11/10/1984 the appellant filed a suit seeking a declaration that the ex parte decree was a nullity and also that the second marriage of the respondent was void and non est. The suit was dismissed on 3/8/1987. The first and second appeals filed by the appellant were also dismissed. This appeal by way of special leave is against the judgment of the High Court dismissing the regular second appeal. While the suit was pending, the appellant filed a petition under Article 227 of the Constitution of India for setting aside the ex parte decree. That application was dismissed by the High Court on 26/3/1986. The special leave petition filed against the said order was also dismissed by this Court on 10/9/1986.

(2.) We have heard the appellant in person and also her learned counsel. We have also heard Mr A. Subba Rao, learned counsel for the respondent. The appellant is a government servant and is working as Assistant Engineer in the State of Andhra Pradesh. The respondent is also Assistant Engineer in the Andhra Pradesh Electricity Board. As mentioned above the ex parte divorce decree was granted by the trial court on the ground of mental cruelty and unsoundness of mind. The findings of the trial court on merits are only based on the statement of the respondent-husband. No medical or any other evidence was led to show the unsoundness of mind of the appellant or even to prove mental cruelty. The trial court granted decree for divorce only on the ipse dixit of the respondent-husband, who was the sole witness before the trial court. We are of the view that the trial court was wholly unjustified in reaching the findings that the appellant was guilty of mental cruelty and she was of unsound mind. We have, therefore, no hesitation in setting aside both the findings reached by the trial court. Having held so, ordinarily we should have set aside the divorce decree, but keeping in view the chequered history of the case, we are not inclined to do so. It is obvious from the record that the appellant was fully aware about the ex parte decree and also of the fact that the respondent had remarried. It was only in 1984 that she filed an application for setting aside the ex parte decree, which was also not pressed. We are of the view that the appellant almost acquiesced to the divorce decree which was granted on 3/4/1978.

(3.) Keeping in view the facts and circumstances of this case, and in order to do complete justice between the parties, while setting aside all the allegations against the appellant as we have already done, we are not inclined to set aside the decree of divorce granted by the court on 3/8/1978.