P S J MANICKAVASAGAM Vs. CHANDRAMATHI DAYAMANI MANICKAVASAGAM

JUDGEMENT

(1.) THIS appeal is preferred by one P. S. J. Manickavasagam (hereinafter called the husband) against the decree for judicial separation passed in O. M. S. 3 of 1960 on a petition filed by his wife Chandramathi Dayamani Manickavasagam (hereinafter called the wife) for judicial separation, maintenance and custody of the children. The judgment itself is a common judgment in a series of proceedings, viz. , O. M. S. 9 of 1959 filed by the husband for a decree for restitution of conjugal rights against his wife, O. P. 221 of 1959 also filed by the husband under the guardians and Wards Act VIII of 1890 for declaring him the guardian of his minor children Jayachandran and Premalatha and for the custody of these children and the said O. M. S. 3 of 1960 filed by the wife for judicial separation.

(2.) THE parties are Indian Christians. They belong to a respectable middle class family. The husband is a professor of mathematics, and is a member of the Madras educational service. He married the respondent in the year 1948. He and his wife were living together happily till 1958, when due to the intervention of the motherin-law troubles started. The wife left his home in 1958 for her mother's place at madurai with her two children and refused to come back with him. Thereupon the spouses exchanged notices before the present proceedings were instituted. The husband came to court in the first instance and filed O. M. S. 9 of 1959 for restitution of conjugal rights. In answer to he suit the wife filed a written statement alleging that her husband has been treating her cruelty by beating her very often and preventing her from having access to her relations in Madras and elsewhere. She also appended to the statement a catalogue of the various acts of cruelty on the part of the husband towards her during their married life. Among those acts of cruelty, the incident which took place on 15-5-1959 assumed great importance during the trial 1959 of the husband's petition for restitution of conjugal rights and in the subsequent proceedings. To prove the cruelty meted out to her by the husband, the wife adduced oral evidence of her mother, her brother Dr. Sukumar, her uncle A. M. Charles a resident of Madras and Abdul Rasack, a doctor in Madurai. All these witnesses deposed that the incident which happened on 15-5-1959 was the main cause for the wife breaking away from her husband's protection. The doctor was summoned to prove that the examined her on 20-5-1959, five days after the incident, and found old contused wound on the inner aspect of the left foot and other injuries. He was of opinion that the injuries were simple in nature and could have been caused by a stick. After the evidence was closed in the petition filed by the husband for restitution of conjugal rights and after the trial was practically over, the husband apprehending that his petition may not survive, filed an application for withdrawal of his petition (O. M. S. 9 of 1959 ). But even before the application for withdrawal as put into court, the wife filed another petition O. M. S. 3 of 1960 out of which the present appeal arises for judicial separation on the ground of cruelty of the husband. When the husband requested the court to give him permission to withdraw O. M. S. 9 of 1959, the wife seriously objected to such withdrawal and insisted upon the court either to dismiss it or pass any suitable order. The learned Judge, instead of dismissing the husband's petition, directed the wife to file particulars of the ground upon which judicial separation is sought in support of her petition for judicial separation and directed the office to pose O. M. S. 9 of 1959 and 3 of 1960 and the connected O. P. for custody of children together for disposal. When these proceedings came up for hearing on 7-7-1960, learned counsel for the husband made a request to the court that four of the witnesses examined in O. M. S. 9 of 1959 on behalf of the wife should be recalled for further cross-examination. Counsel for the wife opposed the request on the ground that the issue already framed in O. M. S. 9 of 1959 covers the acts of cruelty relied upon in the later petition O. M. S. 3 of 1960 and any finding of the court on this issue would be sufficient to grant a decree for judicial separation of the evidence is in favour of the wife. The learned Judge asked the husband to further cross-examine three witnesses, viz. , the wife, her brother Dr. Sukumar and her maternal uncle Charles, but disallowed the request for further cross-examination of the Madurai doctor on the ground that it was unreasonable. The trial of O. M. S. 3 of 1950 went on and the three witnesses were cross-examined and a common judgment was delivered in all these proceedings. The learned Judge while dealing with the case of cruelty which was common to both the petitions observed:

(3.) THE learned counsel for the appellant contended before us that the procedure adopted by the learned Judge in disposing of these proceeding has seriously prejudiced his client and has vitiated the trial of O. M. S. 3 of 1960. He represented to us that his request to have the said O. M. S. 3 of 1960 tried separately was not acceded. He also contended that the learned Judge ought not to have allowed the evidence recorded in O. M. S. 9 of 1959 to be read as evidence in O. M. S. 3 of 1960. When these proceedings came up together for hearing, the wife did not examine herself in chief to obtain testimony in support of the version of the facts alleged in her supplemental statement filed in O. M. S. 3 of 1960 and the learned Judge allowed her to go into the box only for the purpose of cross-examination. Equally the husband was not allowed to state in examinationin-chief his case in regard to the cruelty alleged by the wife, but was only directed to go into the witnesses who were recalled for giving evidence were also only further cross-examined in regard to the alleged acts of cruelty and also the allegations made in the petition for judicial separation filed by the wife. Now we have to consider whether the procedure adopted by the learned Judge is quite consistent with procedure to be followed under the Indian Divorce Act, IV of 1869. Section 7 of that Act provides: