B MURTHY Vs. NIRMALA

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned District Judge, Nilgiris in O.P.No.46 of 1989. The petitioner/husband is the appellant in the above appeal.

(2.) THE said O.P. was filed by the husband under Sec.13(1)(A)(ii) of the Hindu Marriage Act, 1955. It was contended by the husband that they belong to Hindu Badagar Community and they were governed by Hindu Law and Custom. He was married to the respondent on 11.9.1983 at Mattakandi village as per the custom prevailing in their community. After the marriage, the respondent was living with the petitioner for about seven months. During the period of her stay, the respondent was extremely quarrel some with. THE petitioner and the other members of the petitioner's family. Throughout her stay, the respondent by her cruel behaviour had caused untold suffering and mental agony to the petitioner. THE petitioner was subject to unbearable mental cruelty and the respondent could not change her attitude inspite of the advice given by the petitioner. During the month of May, 1984, the respondent picked up a quarrel with the petitioner and other member of the petitioner's family and left the house voluntarily and went to the house of her parents and eversince that day, she has been residing there. She did not come and join with the petitioner she had not only treated the petitioner with cruely but also deserted him without reasonable cause. THErefore, there was no other alternative except to seek for divorce and the petitioner had sent a notice dated 12.7.1985 calling upon the respondent to agree for divorce be mutual consent. A frivolous reply was sent to the notice and hurriedly the respondent had also filed a petition for restitution of conjugal rights in O.P.No.42 of 1985. THE petitioner also filed a petition for judicial seperation in O.P.No.43 of 1985. Both the petitions were contested and trial together and dealt by a common judgment dated 24.8.1987. While O.P.No.42 of 1985 filed by the respondent was decreed, the petition filed by the petitioner in O.P.No.43 of 1985 for judicial separation was dismissed.

(3.) IN the present case, the wife has not taken out any petition to execute the decree for restitution of conjugal rights. Even though she had taken steps to file a petition for maintenance, she had not taken any steps to execute the decree. Not even a single documentary evidence has been filed to show that there was any genuine attempt on the part of the wife to resume the cohabitation. Mere oral evidence is not sufficient to rebut the evidence given on the side of the husband. Therefore, I am unable to sustain the finding of the trial court to the effect that the husband was responsible for the non-presumption of the cohabitation.