R MOHAN Vs. SMT KASTHURI

JUDGEMENT

(1.) THIS is an appeal by the husband, whose proceeding for divorce on the ground of cruelty, desertion and non-cohabitation for more than a year after the passing of a decree for restitution of conjugal rights has been dismissed for default. The case of the husband is that the marriage between him and the respondent took place on 2.6.1980 and she did not allow him to consummate the marriage. She refused to have intercourse with him and thus treated him with cruelty. It is the further allegation that she left the matrimonial home on 9.6.1980 and began to stay with her parents permanently. It is also stated by him that she filed O.P. No. 651 of 1985 for restitution of conjugal rights and got an ex-parte decree. Reference is also made to the proceedings in M.C. No. 225 of 1989 in the Family Court wherein she got an order for maintenance in her favour at the rate of Rs. 200/- per mensem.

(2.) WHEN the Original Petition was pending, there was an application by the wife for direction to the husband to pay interim maintenance and an amount for litigation expenses. Those applications were numbered as I.A. Nos. 345 and 346 of 1992. The Family court passed an order on 14.9.1992 directing the husband to pay a sum of Rs. 200/- in addition to the sum of Rs. 200/- already payable under the order in M.C. No. 225 of 1989. The Family Court also directed him to pay a sum of Rs. 400/- towards litigation expenses. The ultimate order was to direct the husband to pay a sum of Rs. 200/- over and above the amount ordered in M.C. No. 225 of 1989 from 5.2.1992 to 5.10.1992 i.e., Rs. 200/- for eight months making a total of Rs. 1,600/- plus the sum of Rs. 400/- towards litigation expenses making in all a sum of Rs. 2000/-. The main Original Petition for divorce was posted to 12.10.1992. The husband was directed to make the payment before that date. WHEN the petition was called on 12.10.1992 the husband appeared and applied for extension of time. The Court extended the time till 28.10.1992. On 28.12.1992 he was absent, and he did not pay the amount as directed by the Court. Taking note of the default, the Court passed an order on 28.10.1992 dismissing the Original Petition.

(3.) HOWEVER, we are of the view that the contentions of the appellant cannot be accepted in this case for the reason that if the original petition is restored to file it has to be dismissed on the ground that it is barred by res judicata in view of the order passed in O.P. No. 651 of 1985 which granted restitution of conjugal rights in favour of the wife. In that Original Petition, a copy of which has been filed by the appellant herein as document No. 4 along with his petition for divorce, the allegation made by the wife is that the husband was guilty of cruelty as he did not allow her to have physical intimacy and to enjoy marital conjugal bliss. It is also her complaint that the husband was guilty of withdrawing society from her without any cause therefor. In that petition the appellant remained ex-parte . The wife examined herself as P.W. 1. On her evidence which was accepted by the Court a decree for restitution of conjugal rights was granted.