M AJITH KUMAR Vs. K JEEJA ALIAS SANILA

JUDGEMENT

(1.) The petitioner-husband in O.P. No. 50 of 2001 on the file of the Family Court, Kozhikode is the appellant herein. The said Original Petition was filed under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for divorce. The admitted facts are as follows:

(2.) With respect to what had happened subsequent to the said period of two and a half months, there are conflicting versions by the appellant and the respondent. According to the appellant, he left for Gulf after the said period and thereafter, the respondent was taken to her house for delivery in December, 1991. When he returned from Gulf in December, 1994, the parents of the respondent did not permit her to stay with him. In the year 1995, the respondent herein had filed O.P. No. 61 of 1995 before the Family Court, Kozhikode under Section 9 of the Act for restitution of conjugal rights. The said Original Petition was allowed on 14.7.1997 with a direction to resume cohabitation within two months from the date of the judgment. In the year 1996, the respondent filed M.C. No. 109 of 1996 seeking maintenance for the child and that was also allowed on mutual consent. Subsequent to the passing of the decree in O.P. No. 61 of 1995, the respondent - wife did not resume cohabitation despite several attempts on the part of the appellant. The respondent had no genuine intention to resume cohabitation and they are residing separately for the last 9 1/2 years. It was with the aforesaid allegations that the appellant herein filed O.P. No. 50 of 2001 for dissolution of their marriage by a decree of divorce.

(3.) The respondent contested the matter contending that it was the appellant who stood against the resumption of cohabitation pursuant to the decree in O.P. No. 61 of 1995. In the counter affidavit, she had specifically expressed her willingness to live with the appellant-petitioner. She had also stated therein that after the appellant left for Gulf, she was subjected to mental torture by his parents during her stay at his house. Considering the aforesaid conflicting versions, the Family Court formulated the point as to whether the petitioner is entitled to get a decree of divorce for consideration.