SURESH BABU Vs. C.K. MINI

JUDGEMENT

(1.) The appellant herein was the petitioner in O.P. No. 364 of 1999 filed under Section 13(1)(i-a) and (i-b)) of the Hindu Marriage Act, 1955 before the Family Court, Kozhikode. The facts, shorn off unnecessary details, are as follows:

(2.) The marriage between the appellant and the first respondent was solemnised on 3-9-1997. According to the appellant, no children was born in the wedlock and the first respondent-wife left the matrimonial home and started living separately since 22-12-1997. He sought for a decree of divorce on the ground that the first respondent was living in adultery and that she had voluntary sexual intercourse with the second respondent. The second respondent remained ex parte in the proceedings. The appellant is a tailor by profession and the first respondent is a Nursing Assistant. The appellant also alleged desertion and cruelty on the part of the first respondent as grounds for seeking divorce. According to the appellant, the first respondent became pregnant after she started living separately. According to him, on 13-1-1999, he was assaulted by the brothers of the first respondent and the second respondent at Ekarool market, that he was subsequently hospitalised and discharged on 16-1 -1999. The serious allegation made by the appellant against the first respondent is that on 22-12-1997 when he returned from the temple along with his mother and sister's child, he found respondents 1 and 2 indulging in sexual intercourse. It was mainly with the said allegations that he filed O.P. No. 364 of 1999 before the Family Court.

(3.) Prior to the filing of the said Original Petition by the appellant, the first respondent herein had approached the Family Court, Kozhikode by filing M.C. No. 100 of 1999 under Section 125 Cr. P.C. In the said Maintenance Case, the first respondent - wife had contended that herself and the appellant were living as man and wife and a child was born to them in the wedlock. She contended that she was treated with cruelty by the appellant and his people and that the appellant has some mental problem. She also contended that the appellant, his mother and other relatives had subjected her to physical torture demanding dowry and that he had been entertaining suspicion of infidelity. According to her, it was the ill treatment and the other circumstances mentioned above that made her to leave the matrimonial home and to live separately and that even during separation, she used to visit the appellant at his house and used to have sexual relationship. She further contended that the appellant had even insisted her to abort the pregnancy. It was with the said allegations and averments with respect to her incapacity to maintain herself and the child that she filed the M.C. No. 100 of 1999. In fact, in the written statement filed by the first respondent in O.P. No. 364 of 1999, she had reiterated all the aforesaid contentions and further denied the allegations of illegal connection with the second respondent and also with other men. She had even stated therein that she was prepared to undergo D.N. A. test at the expense of the appellant in view of the allegation that she had conceived after living separately. She also denied the fact that she was a Nursing Assistant. Further, the first respondent had contended that she got love and affection towards the appellant and that it was solely on account of his cruelty, both mental and physical, that she had to leave him and start separate residence. In fact, in her written statement, she had denied all the allegations levelled against her by the appellant.