MARGARET GEORGE CHANDAMANNIL Vs. CHANDAMANNIL MANANMAN GEORGE

JUDGEMENT

(1.) This first appeal has been filed by the wife against the order of the Additional District Judge, dated 5th January, 1973, by which he dismissed the petition of the wife for grant of a decree for judicial separation.

(2.) The parties are Christians who were married according to Christian rites on 29th October, 1967 and the petition giving rise to this appeal was filed on 17th July, 1971. The wife is educated and is employed as Physical Instructor in Lady Sri Ram College, Delhi on a salary of about Rs. 1100.00 per month, while the respondent husband in Tata Institute and had been getting a salary of Rs. 500.00 per month previously and on the date of evidence was getting Rs. 1150.00 besides other expenses. They have got two children ; one born on 1st August, 1968 'and the other on 20th April, 1971.

(3.) The appellant wife filed the petition for judicial separation in July, 1971. The petition was subsequently amended on 9th August. 1971 and the material allegations after staling the facts relating to the marriage are that the wife and husband did not pull on well with each other and the husband became extremely cruel and the wife could not possibly tolerate his insolent, aggressive, and violent conduct and in fact both of them were living separately ; the husband at Ranchi and the wife at New Delhi, except for short durations of the vacations. She further alleged that the husband was nasty, abusive and was in extremely threatening mood and behaved awfully in the presence of others, that the husband used to physically assault her with fists, pushes and slaps ; that the husband was very hot tempered and was in the habit of drinking and used to misbehave, abuse and assault while he was drunk, that he was never interested in living with the wife and that the cruel actions and mental torture prepetually endangered the life, limb and health of the wife, as a result of which she suffered mentally and frequently used to have nervous breakdown. She also alleged that the conduct of the husband rendered the continuance and performance of the conjugal duties impossible and she claimed a decree for judicial separation. In the written statement. the husband resisted the petition for judicial separation, but stated in paragraph 10 that he admitted that on 22nd August, 1969 and on 16th October, 1970 he did give blows to the wife and chastised her. In the additional pleas the husbnad elaborated the details. In the paragraph 5 thereof he stated that on 22nd August, 1969 on an unscheduled visit to Delhi he discovered a contraceptive device used by female in the wife's evening bag, which she had no necessity either to keep or much less to carry about in the hand bag she used for social outings ; the respondent questioned her sharply on this and the wife instead of making a clarification and straight answer defied the respondent husband suddenly staling "you have no business or right to check me". At this the husband gave her a stunning blow and also abused her roundly, but whatever grievance the wife had at this was condoned on resumption of affectionate relationship and co-habitation later. This paragraph shows that the husband admits having given a stunning blow and abused her roundly in the circumstances mentioned by him and he further alleged its condonation. In paragraph 10 the husband has given details of the second incident. It contains a large volume of details and after omitting what is not material for the moment, the husband has in substance stated that on 16th October, 1970 he had left the house in order to go to Dehra Dun, but on account of pain he returned to the house after about two hours and on reaching the flat he saw the three doors bolted from inside and the two windows of the bed room unusually closed and curtained ; that he took a round of the house and found that the back door of the bed room opening to the back verandah was also closed and curtained ; that having found the doors and windows closed he went towards the back door opening to the back lawn and knocked calling out the wife's name, but there was no response ; that he came to the front door and after bolting the front door rushed back to the back door and rattled it violently, but it was not opened; that he heard movements inside the house; that it occurred to him then that he had not bolted one of the front doors and whoever inside could make an escape through that door; and that he rushed to the front side of the house and there he saw to his tremendous mortification some one, unknown to him, bounching off the house to the lawn in the front and to the road. The husband then stated that he rushed into the house before the wife could bolt the door from inside and lock him out ; that therewas none else except the wife in the house ; that he questioned the wife, who was not properly dressed and whose appearance was far from normalcy, as to who her visitor was ; that she screamed and said "get out, this is my flat. Get out. You have no business to question. What is your business whom I sleep with ?" The husband thereupon was shocked and enraged and gave her few blows under extreme provocation and he left the flat almost immediately at about 10 a.m. and the wife once for all. In the midst of this happening the husband told the wife that he suspected that the second child might not be his to which the wife replied, "of course not". The husband has further stated in the written statement that the wife was guilty of adultery with the persons unknown to him. In the replication the wife reiterated her pleas contained in the petition and in paragraph 10 she reaffirmed that the husband had given her blows and beating several times. In reply to para 5, she averred that there was no condonation of cruelty and there had been no resumption of affectionate relationship and cohabitation. On the pleadings of the parties, the following issues were framed .