NISHADA Vs. JAYAKUMAR

JUDGEMENT

(1.) UNDER challenge in this appeal filed by the wife is the decree of restitution of conjugal rights granted in favour of the respondent husband in O.P.No.768/2008 on the file of the Family Court, Malappuram. The appellant's defence to the respondent's plea for restitution of conjugal rights was that the respondent is a habitual drunkard and hence, she is not prepared to co-habit with him so long as his drinking habit is continued. The Family Court conducted an enquiry in which the respondent was examined as PW1 and a colleague of the respondent and a mediator in the dispute between the parties were examined respectively as PW2 and PW3. The appellant gave oral evidence as RW1. The documentary evidence from the side of the appellant consisted of Exts.B1 to B6, and that the documentary evidence on the side of the respondent consisted of Ext.A1 to A12. The learned Judge of the Family Court on evaluating evidence came to the conclusion that the evidence falls short of holding that the respondent is a habitual drunkard. The evidence according to the learned Judge only shows that the respondent drunks on occasions while attending functions, parties etc. This, according to the learned Judge will not disentitle him from having his wife's co-habitation especially since the parties have a child. Accordingly, the learned Judge would allow the original petition filed by the respondent and direct the appellant to co- habit with the respondent.

(2.) VARIOUS grounds have been raised challenging the findings of the learned Judge in the impugned judgment and it is seen that after hearing both sides, the case was sent to mediation and Adv.Sri.Muhammed Mustaq one of the accredited mediators of the High Court's Mediation Centre, mediated between the parties and the mediation was successful. Pursuant to the successful mediation the parties did co-habit for some times. But later they fell apart. This according to Mr.K.M.Firoz is because the respondent continued his drinking habits.