G. DWARAKABAI Vs. P. NAINAN MATHEWS

JUDGEMENT

(1.) THIS is a petition by one Dr. Dwarakabai, M. B., B. S., aged 40, the Petitioner in O. M. S. No. 6 of 1951, a petition for dissolution of her marriage with the respondent, P. Nainan Mathews, a Master of Arts and Bachelor of Laws, aged 58, on the ground of his adultery and desertion. Her previous petition, O. M. S. No. 34 of 1946 for divorce on the ground of his attempted sodomy on her and subsequent desertion had been dismissed by Clark J. and the dismissal confirmed by Rajamannar C. J. and Viswanatha Sastri J. in appeal in O. S. A. No. 73 of 1947. In O. M. S. No. 6 of 1951, a decree nisi was passed by me 'ex parte', on 8 -4 -1952, on the evidence adduced by the petitioner, Dr. Dwarakabai, and her witnesses. Normally, O. M. S. No. 6 of 1951 would have come up before me on 8 -12 -1952 for making the decree nisi absolute. But, meanwhile, the respondent, Nainan Mathews, is said, by this petitioner, to be contemplating filing a petition against making the decree nisi absolute on the ground that he had not committed adultery or deserted the petitioner but that he had been given a large sum of money by the petitioner as bridegroom price and that it was fear regarding her demanding payment back of this money labelling it as a loan to him, that had made him remain 'ex parte' on 8 -4 -1952.

(2.) TODAY , a petition has been filed by both the parties for recording a compromise entered into on 16 -9 -1952 between them and for vacating the decree nisi passed by me on 8 -4 -1952, and allowing the petitioner, Dr. Dwarakabai, to file a fresh petition for dissolution of her marriage on the very ground of adultery and desertion relied on by her for getting the decree nisi passed by me on 8 -4 -1952. It was prayed further that this compromise should be in no way used as a condonation by Dr. Dwarakabai of the old adultery and desertion alleged before.

(3.) BUT Mr. Tyagarajan, for the petitioner, and Mr. P. S. Ramachandra Ayyar, for the respondent, both prayed that the decree nisi, passed 'ex parte' by me on 8 -4 -1952 should be set aside, and that O. M. S. No. 6 of 1951 should be restored to file and disposed of afresh after hearing the evidence to be adduced by the petitioner and the respondent. I agree to that as in the peculiar circumstances of this case, and in view of the past history, it is desirable to set aside the order of decree nisi passed by me on 8 -4 -1952 and hear the evidence adduced on both sides afresh, and give a fresh decision after contest, especially as the respondent has ceased to abscond and has made himself avail able, as pointed out by his learned counsel, and is likely to contest the action and adduce evidence on his behalf. The prayer to record the compromise is accordingly refused, but the prayer to set aside the decree nisi passed by me on 8 -4 -1952 is granted for the reasons stated above, and O. M. S. No. 6 of 1951 is re stored to file and posted to 5 -11 -1952 for hearing. In the peculiar circumstances, all the parties to this petition will bear their own costs.