EASWARAN Vs. MANI

JUDGEMENT

(1.) THE Civil Miscellaneous Second Appeal and the Civil Revision Petition arise out of matrimonial/maintenance proceedings. THE husband is the appellant in the Civil Miscellaneous Second Appeal and the wife is the petitioner in the Civil Revision Petition.

(2.) THE husband filed a petition for divorce in O.P.No.68 of 1992 before the Subordinate Judge's Court, Gobichettipalayam, against the wife alleging adultery. THE parties were married on 12.6.1975 as per Hindu customary rites and conventions of the families at the residence of the husband at Kuppichipalayam. THEy were living happily. But, they were not blessed with any child. Medical check-ups were not helpful. According to the husband, at the instance of her father one Perama Gounder, who was also a resident of Kuppichipalayam and her junior paternal uncle one Chinnu, the wife started pestering the husband for settling his properties in her favour, that as he refused to comply with her request, she developed hatred and malice towards him and on 27.5.1987 she left the matrimonial home without assigning any valid reason and sufficient cause and without his knowledge and went to her father's house, that there was an attempt to settle the issue through local panchayat, that ?nattolai? was sent to her, but she did not respond to the notice to attend the panchayat, that this necessitated his filing a petition for restitution of conjugal rights in THEre was no instigation by her father or maternal uncle to prevail upon the husband to settle properties on her. She did not develop any hatred or malice towards him. After the compromise decree in O.P.No.50 of 1987 the couple was leading a peaceful matrimonial life till the birth of the child Gnanasekaran. He did not even know whether the child was a male or a female. It was false to say that he had no access to her and that the child was born on account of an adulterous life. THEy were living together and having sexual relationship till a month before the birth of the child. It was false to say that the wife left the marital home in Adi, 1991. She left the husband's home only on the 25th of Avani, 1992 (10.9.1992) to her parents? house for confinement. THE child was born on 8.10.1992 at Seethalakshmi Hospital, Gobichettipalayam and the date of birth was also entered in the municipal records on 21.10.1992. THE medical check-up mentioned in the petition for divorce was a make-belief affair and had been created for the purpose of filing the present false and frivolous petition against her for divorce. She never led an adulterous life at any point of time. Her mind had always been with her husband and her child Gnanasekaran. She had never deserted the husband at any point of time. Only the husband did not allow her to rejoin him. She had also filed a suit in O.S.No.1 of 1993 seeking for maintenance and for permanent injunction against the husband restraining him from solemnising any second marriage. THE petition deserved to be dismissed.

(3.) MR.A.K.Kumarasamy for MR.M.Duraiswamy, learned counsel for the appellant, submitted that the Courts below were in error in overlooking very material facts while holding that the husband had not made not a case for divorce. The learned counsel submitted that the husband had produced adequate materials to show that he was incapable of producing a child, that the wife left the husband more than 400 days before the child was born and that the Courts below were in error in rejecting the oral evidence on the side of the husband as also the Doctor's evidence. The learned counsel further submitted that the lower Appellate Court was in error in dismissing the application for the parties to subject themselves to DNA analysis and that this could be ordered even now.