L. RAJINI Vs. N. KANNAN

JUDGEMENT

(1.) The Civil Miscellaneous Second Appeal has been directed against the impugned judgment and decree dated 03.01.2013 made in C.M.A. No.62 of 2011 on the file of the District Court, Nilgiris, reversing the judgment and decree dated 10.06.2011 made in H.M.O.P. No.41 of 2010 on the file of the Sub Court, Nilgiris.

(2.) Substantial questions of law have been framed by the appellant as under:

(3.) Learned counsel appearing for the appellant wife would submit that after the marriage solemnised on 23.06.1999 at Hotel Charing Cross, Uthagamandalam between the appellant and the respondent in accordance with the Hindu rites and customs, they lived only for 11 days. Thereafter, the respondent left for Riyadh, Saudi Arabia in July 1999 and he returned in the year 2000. During the wedlock, the appellant became pregnant and given birth to a female child namely, Pooja on 29.08.2001. Learned counsel for the appellant would further submit that despite the respondent undertook to take the appellant to Riyadh, he has not come forward to see his daughter till December 2003. Since the appellant has undergone surgery, she has met out the medical expenses incurred. As the respondent again left and did not return over a period of time, the appellant was constrained to sell away the house site purchased in her name so as to meet out the huge expenditure for maintaining herself and her child. Thereafter, the appellant left the matrimonial home. In order to harass the appellant, the respondent has filed H.M.O.P. No.53 of 2008 before the Subordinate Court, Nilgiris seeking restitution of conjugal rights. Since the appellant was eager to join with the respondent, she had not contested the said proceedings effectively with an intention to go back to live with her husband. Although the above petition for restitution of conjugal rights was allowed and the appellant expressed her willingness to join with the respondent for the welfare of the child, the respondent has not chosen to cohabit with the appellant and filed H.M.O.P. No.41 of 2010 seeking dissolution of marriage before the Subordinate Court, Nilgiris. After considering the fact that the appellant was ready for re-union and she has been maintaining the child alone in meeting out the expenses, the Trial Court dismissed the divorce petition filed by the respondent and as against which, the respondent filed C.M.A. No.62 of 2011 before the District Court, Nilgiris. But the Appellate Court has come to the conclusion that the appellant was responsible for desertion on which basis the decree for divorce was granted, which is not justifiable. The reason being that when the respondent, as a husband and also a dutiful father has not even come forward to meet out the expenses of his wife and the small child, the grant of divorce on the ground that the appellant has deserted the respondent is wholly unsustainable in law.