K.V. SALLAPPAN Vs. KAMALA @ NALLAMMA

JUDGEMENT

(1.) This appeal is directed against judgment and decree of divorce dated 10th Aug., 1982 of an Additional District Judge by which he dissolved the marriage between the parties on the ground of cruelty falling under section 13(1) (ia) of the Hindu Marriage Act (for short 'the Act').

(2.) Succinctly the facts giving rise to this appeal are that the marriage between the appellant and the respondent was solemnised in Ishwaran temple at village Venganoor, Perum Pillar Taluka, District Trichy (Tamil Nadu) in accordance with Hindu rites and ceremonies sometime in February/ March, 1975 and they lived together at village Lathuwadi, Athur Taluk, District Sehlam (Tamil Nadu) uptil Nov., 1978 when the respondent came over to Delhi to look after her ailing father who was already living here. The appellant was a widower at the time of his marriage with the respondent and he had two sons from his first wife. One son was born out of the wedlock in March, 1976. In 1979 the appellant to came over to Delhi and started living with the respondent in house No. 1766,'F' Block J.J. Colony, Tigri in Oct. 1980 the respondent moved a petition under Sec. 13 (1) (ia) of the Act for dissolution of the marriage between the parties by it decree of divorce on the ground of cruelty. She averred that just a few weeks after their marriage, the appellant started making baseless and false allegations against her character and he would abuse her. He was a habitual drunkard and forced her to part with her dowry and ornaments etc., to meet his needs. However, she cherished the hope that he would come round in due course of time, hut to her utter dismay the appellant did not change his habits even after the birth of a son to her and the appellant continued wasting his income from land in gambling and drinking. He also continued abusing and even beating her at times. After the arrival of the appellant at Delhi also he gave beating to her in order to extract money for purchasing liquor and for gambling whenever she refused to part with any money. However, on a day in the month of May, 1980 to appellant suddenly left his matrimonial home i e. the one situated in 'F' Block', J.J Colony, Tigri and started living with his two sons from the first wife. But even thereafter the appellant went to her several times and threatened to kill her and their child if she did not hand over all her belonging to him and on her refusal he inflicted a knife injury to her on 18th September, 1980 at about 5-30 A.M. and it was only by providence that he survived the brutal attack. She lodged a report to the police about the same but even subsequently the appellant continued threatening her and she had to lodge further reports with the police. Thus, she averred that she was living in constant fear of being done away with by the appellant who had wide contacts with the underworld.

(3.) The petition was resisted by the appellant who denied all the allegation, about his abusing or beating the respondent or having made imputations against her chastity. He also refuted the allegations of his having assaulted the respondent with a knife or having threatened to kill her, as alleged. He further denied that he was a habitual drunkard and that be used to demand money from her for liquor or gambling. However, be asserted that the respondent had come to Delhi with the intention of settling here permanently as her close relatives, including her parents were already at Delhi. He further averred that at the time of the respondent marriage with him he gave Rs. 3,000 to her father in consideration for the marriage and beside that he spent Rs. 3,500 on marriage and gave 5 tolas of gold to her which she illegally took with her while leaving for Delhi. The reason for the respondent seeking divorce from him, according to him was that was averred an old and sick person and was not earning enough. In particular, he it averred that he had undergone an operation of the abdomen, a fact which was known to the respondent, and as such he was no longer capable of earing enough whereas the respondent was earning much more than him. So, the respondent had moved the petition for divorce with a view to get rid of him and grab the money and the ornaments etc. which he had given to her. He denied having suddenly left the matrimonial home in May, 1980 and contended that he was turned out of his house by the respondent and her parents etc. who hurled the threats that he dare not return to the matrimonial home and, therefore, he was forced to live separately. He asserted that he was living separately all alone and not with his two sons from the first wife. Further according to him, he had tried to persuade the respondent to live with him and even return to their native place in Tamil Nadu but she always turned a deaf ear to his entreaties. He characterised the allegations of his assaulting the respondent on 18th Sept., 1980 with a knife or his threatening her later on as absolutely false and baseless. The learned trial court framed the following issues on the pleadings of the parties :