KUPPANNA GOUNDAN Vs. PALANI AMMAL

JUDGEMENT

(1.) This appeal arises out of a petition by a husband against his wife under Section 5(1)(c), Madras (Hindu Bigamy Prevention and Divorce) Act, 6 of 1949.

(2.) The husband is the appellant. He sued his wife, the respondent for dissolution of marriage on the ground of desertion. The parties were married in about 1940 and they had a daughter above 9 years old on the date of the petition. There was a partition in the family of the petitioner in 1943 and differences arose between the respondent's father and the petitioner over the allotment of properties to a deaf and dumb brother of the petitioner and the respondent left the house of the petitioner and lived with her father. The respondent tiled a suit against the petitioner for maintenance in O. S. No. 171 of 1943 on the file of the District Munsif's Court, Erode. On the intervention of mediators, the suit was compromised on 20-10-1943 and the respondent agreed to go back to the petitioner and live with him. But apparently she did not join in pursuance of the compromise and the petitioner caused lawyer notice to be sent to her in 1943 and again in 1944 demanding her to come and join him. His case is that since she refused to join him he was obliged to marry a second wife. The second marriage took place in 1944. The respondent then filed another suit O. S. No. 433 of 1944 on the file of the District Munsif's Court, Erode, for maintenance for herself and her minor daughter. She charged the petitioner of not providing any maintenance or taking her back to live with him but on the other hand married a second wife; and she therefore claimed entitled to separate maintenance. The trial Court held on the evidence that the respondent was at fault in not having joined the petitioner and rejected her claim for maintenance. She appealed against that decision and in A. S. No. 191 of 1946 on the flic of the Principal Sub-Court, Coimbatore, the dismissal of the suit was confirmed on 22-8-1946. During the pendency of the appeal, the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 19 of 1946 became law on 23-4-1946. A further contention was then raised in appeal that by virtue of the second marriage the respondent would in any event be entitled to separate maintenance as the petitioner has taken a second wife. The learned Subordinate Judge took the view that the Act was not retrospective and as the second marriage took place prior to that enactment, the respondent would not be entitled to any relief. As against that judgment Second Appeal No. 556 of 1947 (Mad) (A) was filed in his Court and Raghava Rao J. held that the Act had retrospective effect and that the respondent was entitled to separate maintenance and residence and remanded the suit for fixing the maintenance and accordingly on remand a sum of Rs. 10 per separate residence and maintenance was directed to be paid by the petitioner,

(3.) The petitioner in the present petition for dissolution of marriage relies on the finding in O. S. No. 433 of 1944 that the respondent was at fault in not joining the petitioner and his case is therefore that she has deserted him ever since the middle of 1943, and for a continuous period of more than three years before the petition and he has become entitled to dissolution of marriage on that ground. The respondent in her counter statement denied that she went away to her parent's house but stated that on the contrary it was the petitioner who drove her out after ill-treatment, that he refused to take her to his house, that under Act 19 of 1946 she is entitled to separate residence, that the second marriage by the petitioner is just cause for her to leave the petitioner and that therefore it would not constitute desertion in law so as to entitle the petitioner to ask for dissolution. The learned Subordinate Judge accepted the contention of respondent that she was living separately, as she is entitled to do so by virtue of the decree in O. S. No. 433 of 1944 and her living separately from her husband could not be said to be without just cause and refused to grant the dissolution of marriage. The present appeal is against that order and it came up before our learned brother, Basheer Ahmed Sayeed J. and this appeal is posted before us, as the learned Judge considered that the point that arises in this appeal is of some importance and there is no decision as to what exactly is the effect of the order or decree of Court granting separate maintenance to the wife who had already deserted the husband and in respect of which there has been a finding of two Courts.