K. JAGAN MOHAN RAO Vs. K. SWARUP

JUDGEMENT

(1.) THIS appeal arises out of a petition filed by the respondent herein under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The appellant herein married the respondent in March, 1955, and they lived together at Narasaraopet from March, 1955, to the middle of 1957. As the respondent became pregnant, she was taken to Madras by the appellant and was left with her parents for confinement. She delivered a still -born child on 10th August, 1957. The respondent thereafter joined the appellant at Guntur by the end of 1967 where she lived with him till about May, 1958. In May, 1958, the appellant went on leave and took the respondent to Madras and after leaving her with her parents, he went away to Salur, his native place to attend to a litigation concerning his family house. On the expiry of the leave, the appellant was posted to Srikakulam where the respondent joined him in November, 1958. In June, 1959, the appellant was promoted from Supervisor to Assistant Engineer and posted to Vizag. The appellant went to Vizag leaving the respondent at Srikakulam and took charge on 16th June, 1959. After fixing up an accommodation at Vizag the appellant went to Srikakulam and brought the respondent to Vizag on 6th July, 1959. On 9th September, 1959, the couple left Vizag and came over to Madras. Ever since that date the respondent has been residing only in Madras. All the above facts are not in controversy. But the controversy is only in relation to the circumstances under which the respondent was brought from Vizag to Madras in September, 1959, where she continues to reside with her parents.

(2.) THE case of the respondent is that during the last stages of their stay in Vizag the respondent was ill for a short time and as accommodation at Vizag was costly and not convenient and as the appellant's jurisdiction extended upto Nellore as a result of which he had to spend most of his time on tour, the couple decided that the residence at Vizag should be vacated and that they should take up residence at Madras so that the appellant may visit the respondent as often as possible whenever he went over to Nellore . The couple came to Madras and stayed together from 10th September, 1959, to 14th September, 1959, and the appellant left for Nellore on 14th September, 1959, promising to return in two days to take the respondent to Tirupathi to fulfil a vow. The appellant did not turn up but sent a telegram on 25th September, 1959, from Nellore asking the respondent's father to meet him there. On 26th September, 1959, the respondent and her parents went to Nellore and stayed in the Traveller's Bungalow for the night. The appellant and the respondent together slept in one suite of rooms and her parents stayed in another suite of rooms. The next morning the appellant flourished before the respondent's father three letters said to have been written by the respondent to her alleged paramours. This he did with a view to blackmail and malign the respondent's parents for extracting some money from them for discharging his liability over the family house. Thereupon, the respondent and her parents came over to Madras on 27th September, 1959, and ever since that date the appellant has refused to take back the respondent and the conduct of the appellant forcing her to live in her parents' house at Madras is unjustified.

(3.) THE trial Court held that it had jurisdiction to entertain and try the petition for restitution of conjugal rights, expressing the view that the appellant and the respondent when they came over Madras on 10th September, 1959, had intended to take up permanent residence in Madras after winding to their establishment at Vizag, and that the appellant and the respondent had stayed in Madras for a period of 4 days from 10th September, 1959, to 14th September, 1959 with intention to set up a home there. On the question whether the respondent had forfeited her rights to obtain restitution of conjugal rights by reason of her adulterous conduct, the lower Court had found that the letters, Exhibits B -1 to B -3 said to have been written by the respondent to her paramours had not been duly proved, that the evidence adduced in the case showed that the appellant himself was a victim of a plot hatched up by his brother and others, and that the letters, Exhibits B -1 to B -3 had been concocted by them with a view to poison the mind of the appellant against the respondent so that the respondent's father may come forward to pay a lump sum to the appellant. The lower Court also felt that even if the letters Exhibits B -1 to B -3 were written by the respondent, that will not be taken as proof of adultery, that in any event, the appellant's conduct in cohabiting with the respondent while at Madras between 10th September, 1959, and 14th September, 1959, and also at Nellore on 26th September, 1959, at the Traveller's Bungalow, long after the appellant Claims to have known about the alleged adulterous conduct of the respondent, will amount to condonation and that, therefore, the respondent has not forfeited her rights to obtain restitution of conjugal rights. In that view the lower Court has granted to the respondent a decree for restitution of conjugal rights. The appellant questions the correctness of that decree for restitution of conjugal rights passed by the lower Court.