SAMOU JEAN PIERRE Vs. JACQULINE SAMOU

JUDGEMENT

(1.) C. M. A. No. 1192 of 1993: This is an appeal filed by the respondent in F. C. O. P. No. 757 of 1991 on the file of Family Court, Madras , against an order made on 23. 8. 1993 by the Principal Judge. The original petition was filed by the respondent herein for restitution of conjugal rights. It is not necessary to set out the allegations made in the original petition for the purpose of this appeal. The appellant is contesting the said petition, after filing a counter statement. The respondent filed I. A. No. 578 of 1992 for grant of interim mainte- nance at the rate of Rs. 1,500 p. m. till the disposal of the main original petition and also for Rs. 3,000 by way of legal expenses to conduct the original petition. The appellant filed a counter affidavit in that petition. When that petition was pending, the respondent filed a memo on 31. 3. 1993. According to the memo, no documentary proof was available to the respondent to prove the properties owned by the appellant. A request is made in the memo to treat the interlocutory application as main original petition and dispose of the same, without proof of documentary evidence. Another memo was filed on 10. 3. 1993, by the respondent, in which some details of the properties owned by the respondent' 's parents are mentioned. To that, a reply memo was filed by the appellant on 8. 6. 1993. The appellant has stated that he was working as an accountant at Holy Redeemer' 's Finance Corporation honorarily and received no salary or wages. The Principal Judge passed an order in the interlocutory application on 15. 7. 1993, directing the appellant to pay a sum of Rs. 500 by way of maintenance, from the date of the application, namely, 18. 8. 1992, till the disposal of the original petition, plus a sum of Rs. 1,500 by way of legal expenses. He calculated the total amount at Rs. 8,100 and directed the appellant to pay the sum on or before 10. 8. 1993. He posted the original petition to 10. 8. 1993 for payment of arrears of maintenance.

(2.) ON 10. 8. 1993, according to the order of the learned judge, the appellant was absent and as he did not pay the interim maintenance or litigation expenses, as ordered by court, his defence was struck off. Referring to the factum of striking off defence, the learned Judge proceeded to dispose of the main original petition. The respondent was examined as P. W. I. Relying on the evidence given by the respondent, the learned Judge granted a decree for restitution of conjugal rights under Sec. 32 of the Indian Divorce Act. Thus, the original petition was allotted. Aggrieved by the same, the appeal has been preferred by the appellant who is the husband.

(3.) THERE is another original petition filed by the appellant herein for divorce as against the respondent and the same is pending as O. P. No. 174 of 1991 on the file of the Family Court, Pondicherry. The appellant filed Tr. C. M. P. No. l4189of 1991 in this Court for transferring o. P. No. 757 of 1991 from the Family Court, Madras to the Family Court, pondicherry, in order to try it along with O. P. No. 171 of 1991. Before that petition came up for orders on 6. 8. 1992 the petition filed by the appellant in the court at Pondicherry was disposed of, as the respondent remained ex. parte. The prayer of the appellant was granted by the Family Court, Pondicherry. Hence there was no question of transferring the proceedings pending in the Family court at Madras, to the court at Pondicherry. Consequently, the transfer C. M. P. was dismissed on 6. 9. 1992. Subsequently, the respondent filed an appeal in c. M. A. No. 356 of 1992 in this Court against the ex parte order of the Family court at Pondicherry. The appeal was allowed by a Division Bench of this Court by order dated 15. 3. 1993. The ex parte order passed by the Family Court at pondicherry was set aside and the petition was remitted to that court to be disposed of in accordance with law. Thus O. P. No. 174 of 1991 is again pending on the file of the Family Court at Pondicherry.