SARAH ABRAHAM Vs. PYLI ABRAHAM

JUDGEMENT

(1.) This appeal arises out of O. P. 75 of 1955 filed by Pyli Abraham before the District Court of Kozhikode, under S.32 of the Indian Divorce Act, IV of 1869, for restitution of conjugal rights as against his wife Sara as the 1st respondent, and her parents and brother as respondents 2 to 4. There was across petition O.P. 5 of 1957 filed by the wife Sara against her husband for judicial separation, under S.22 of the Act. Both these petitions were tried and disposed of together with the result that O. P. 75 of 1955 was allowed while 0. P. 5 of 1957 was dismissed, the parties being directed to suffer their costs in both the petitions. The wife has acquiesced in the dismissal of her petition and has come up with this appeal against the decree allowing her husbands petition.

(2.) The parties are Jacobite Syrian Christians. They married in 1942 when they were aged 25 and 17. There are two children of the marriage born in 1942 and 1946. Both husband and wife belonged to Travancore, but in or about 1946 they gave up their place of origin and settled down in Puthupadi in Kozhikode Taluk, whether the wifes family had gone to earlier. It is the common case of both parties that, on 15-9-1949, the wife left the marital home and went to her fathers house along with the children and from that time onwards, the husband is living separate by himself. The circumstances which led to this separation is a matter of controversy. The husband would have it that his father inlaw brought it about without his consent and knowledge because of some money dispute while the wife would say that she took the step being compelled to do so on account of the physical and mental torture she had been subjected to, at the hands of the husband. In 1952 at the instance of the husband, the Church authorities intervened with their good offices but the wifes party would not conform, in spite of an interdictvide Ext. A-3 resolution in the parish church dated 3-3-1953. The husband then filed petition dated 19-3-1953 under the Guardians and Wards Act for custody of the children but without success right up to the High Court vide Ext. B-4 order of the High Court dated 10-10-1955. Finally he issued notice demanding the return of the wife on 24-10-1955 and filed the petition herein for restitution of conjugal rights on 23-12-1955. The parents and brother of the wife were impleaded as additional respondents on the ground that they were obstructing the wife from going back to the husband. The wife resisted the petition on the basis that there was just cause for her living separate in that the husband was guilty of desertion, cruelty and adultery so as to entitle her to get a decree for dissolution. In particular, she alleged that the husband used to beat her severely at all times for no fault of hers and abused her in vulgar and obscene language and had also imputed unchastity to her. She had in consequence become a physical wreck unfit for married life. She alleged further that the husband was addicted to excessive drinking and was leading an immoral life. The additional respondents filed separate objections repudiating their alleged intervention between the husband and wife. They took occasion however to repeat the wifes attacks on the husbands character and conduct.

(3.) In support of their respective positions, both parties led evidence, oral and documentary. The husband and wife were examined as P. W. 1 and R.W. 1. The Vicar of the Church at Puthupadi was examined on the husbands side as P. W. 2 while the wifes father gave evidence for her as R. W. 2. The learned District Judge who had the opportunity to observe the parties while tendering their testimony, was obviously not impressed with the case of the wife in any of its details. Thus she observed in the course of the judgment, that in the absence of any independent evidence in support, the allegations made by the wife that she had been abused, beaten and molested on several occasions, could not be accepted. The evidence of the father was in this connection treated as mere partisan. The allegations of excessive drink and immorality on the part of the husband or as to his having imputed unchastity to the wife were held to be unproved. Similarly unproved was the allegation of the husbands wilful neglect to maintain the wife and children. The learned Judge finally refused to accept the wifes plea as to her serious ill health. In the result the learned Judge found that there was no reasonable excuse for the wife to withdraw from the society of the husband and the proper decree was to grant the husbands petition for restitution.