V. RAMASAMY Vs. L. PRIYA @ PRIYA BHUVANESWARI

JUDGEMENT

(1.) Heard learned counsel for the parties through video conferencing due to the Covid-19 pandemic.

(2.) These two civil miscellaneous second appeals are directed against the concurrent findings of facts reached by both the trial Court and the lower appellate Court repeatedly refusing to grant divorce in favour of the appellant/husband and granting restitution of conjugal rights in favour of the respondent/wife.

(3.) The facts in brief leading to the filing of the appeals are stated as follows:- The appellant is a retired Bank Officer. He married the respondent on 10.2.89 at Sholinghur, Vellore District as per the Hindu rites and customs. Out of the wedlock, a male child was born on 26.11.89. During the pregnancy, it was alleged that in spite of the doctor's advice as well as the advise of the appellant, the respondent/wife had not taken proper care. Although the respondent had undergone the scan procedure, the result thereof with regard to the health of the child was concealed, ultimately the respondent delivered a handicapped male child. It was further alleged that the respondent/wife was behaving in an adamant manner and she is a severe sugar and blood pressure patient and the same were purposefully suppressed by her and her family members with an ulterior motive. It was also further alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation, as a result, the appellant underwent mental agony, that cannot be expressed in words, hence, the appellant, who is of soft nature, was not able to lead a happy matrimonial life with the respondent. On the contrary, the respondent was in the habit of threatening the appellant in a cruel manner causing not only stress, strain and mental agony, but also lot of worries and unpleasantness to the appellant. Many times the respondent used to raise quarrels and would throw vessels and articles on the appellant's face and this behaviour of the respondent became a routine affair from the beginning of the marriage. Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred. In the meanwhile, subsequent to the delivery of the male boy, the appellant was transferred to Coimbatore. It was also pleaded that the appellant had given good treatment to his son in various hospitals at Coimbatore including one of the famous hospitals, namely, Telungupalayam Hospital. But there was no improvement in his son's health. This apart, on many occasions, the respondent had gone to the extent of having kerosene etc., with her and by way of closing the door of the room, she used to give threats of suicide. Although the appellant was transferred to Coonoor, he used to visit the house in alternate days for providing treatment to his son, but the respondent continued her unlawful activities and never cooperated with the appellant. At one point of time, the mental agony, stress, strain caused by the respondent's behaviour went out of control, but considering the health condition of his son, he tolerated her insults. However, the respondent, taking advantage of the ill-health of her mother, left the matrimonial home on 5.4.95 to her parental home informing the appellant that she would come back after a month. Thereafter, the appellant visited her parents house more than 50 times and in addition, the appellant's parents also visited the respondent's house and requested her to come back to the matrimonial home. But the respondent, purposefully and intentionally with an ulterior motive, never turned back to the appellant's house. Therefore, the appellant sent several letters requesting the respondent to come back to the matrimonial home to lead the matrimonial life. When there was no response from the respondent for seven long years and thereby deserted the appellant, he filed the petition in H.M.O.P.No.471 of 2001 before the Family Court, Coimbatore seeking divorce, on the ground of cruelty and desertion, under Section 13(1)(i-a) & (i-b) of the Hindu Marriage Act, to dissolve the marriage solemnized on 10.2.89 between the appellant and the respondent. Thereafter, within three months, the respondent filed H.M.O.P.No.629 of 2001 before the Family Court, Coimbatore seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, on 22.11.2001. The said petitions were transferred to the jurisdictional Court at Vellore pursuant to the order passed by this Court in Tr.C.M.P.Nos.5474 & 5475 of 2003 dated 10.7.2003 and re-numbered as M.O.P.Nos.90 & 91 of 2003 respectively on the file of the Additional Subordinate Judge, Vellore.