T SIVA RAMAN Vs. P RENGANAYAKI

JUDGEMENT

(1.) THE revision is preferred by the husband against the order of the petition in I. A. No. 870 of 2003 for dismissing the Original Petition No. 1195 of 2002 filed by the wife for restitution of conjugal rights. The Family Court dismissed the Petition I. A. No. 870 of 2003 as per order dated 30. 9. 2003.

(2.) THE facts of the case are that the revision petitioner married the respondent on 16. 3. 2000 as per Hindu Rites and Customs in Vijaya Raju Kalyana Mandapam, Adyar, Chennai and the marriage is an arranged marriage and after marriage, the respondent stayed in the matrimonial home at B-2, Flat No. 26, C. V. Koil Street, Alwar Thirunagar, Chennai-600 087 only for five days and thereafter, she left India to the United States of America on 30. 3. 2000 and who was employed in Arizona as Software Consultant. The revision petitioner got a job in Los Angeles in California State in the United States of America as a Post Graduate MCA in Computer Application and has joined as Software Consultant on 12. 6. 2000 at Rapidigm in Los Angeles. When the revision petitioner met the respondent on 30. 6. 2000, 21. 7. 2000, 4. 8. 2000, 18. 8. 2000, 8. 9. 2000 and 29. 9. 2000 in United States of America, the respondent refused to accommodate so as to co-habitate with the revision petitioner. The revision petitioner lastly met her when she lived in California State in the United States of America and later she disappeared and despite the sincere efforts through U. S. Search Com. the revision petitioner could not search her. During the visit of the revision petitioner in India, on 13. 8. 2001, the revision petitioner caused lawyer notice to the respondent to her last known address in California State in the U. S. marking a copy to her father in his address at Thiruvanmiyur, Chennai-600 041 and the respondent replied with false averments on 15. 10. 2001. The revision petitioner sent rejoinder on 27. 11. 2001. After reply by the respondent nothing was heard about her. On return to U. S. On 18. 9. 2001 and after waiting for long time, the revision petitioner tried for marital settlement agreement as per the American Law for mutual divorce. There was no response from the respondent. Thereafter the revision petitioner filed a petition for dissolution of marriage in the Superior Court of California State, Country of Los Angeles in the U. S. in Case No. VDO 49409 on 23. 4. 2002 where the respondent lastly met the revision petitioner at California State and within the jurisdiction of California Superior Court. The respondent filed counter objecting the jurisdiction of the said Court to which the revision petitioner filed a reply. When the case was posted in Superior Court of California Country of Las Angeles on 5. 8. 2002 for the appearance of the respondent, she had run away from U. S. A. and came to India. But, however, filed petition in O. P. No. 1195 of 2002 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in July 2002. The Superior Court of California granted decree of dissolution of marriage in the Case No. VDO 49409, between the revision petitioner and the respondent effective from 10. 2. 2003 and the decree is dated 9. 1. 2003. The Family Court has no jurisdiction to continue the trial in O. P. No. 1195 of 2002 and the judgment of the California Court is binding on the Family Court under Section 41 of Indian Evidence Act. Therefore, the petition O. P. No. 1195 of 2002 for restitution of conjugal rights by the respondent is not maintainable. Hence, the revision petitioner has filed the petition I. A. No. 870 of 2003 to dismiss the O. P. No. 1195 of 2002 filed by the respondent for restitution of conjugal rights.

(3.) THE petition I. A. No. 870 of 2003 was opposed in the counter filed by the respondent that the petition subject matter of this revision has been filed to drag the proceedings in O. P. No. 1195 of 2002 filed for restitution of conjugal rights. It is further stated that the revision petitioner has obtained the alleged decree of divorce by playing fraud upon the Superior Court, Los Angeles Country, California and in any event the said Court is not having competent jurisdiction to try matrimonial cause between the revision petitioner and the respondent which was consummated in Chennai, India and as such, it is only the Family Court, which has got jurisdiction. The alleged decree of dissolution of marriage obtained by the revision petitioner is only an ex parte decree. The respondent never submitted to the jurisdiction of Superior Court Los Angeles Country, California and also her counsel. The alleged decree of dissolution of marriage delivered by Superior Court Los Angeles Country, California is not valid in law, since it is passed without jurisdiction and as such, Section 41 of the Indian Evidence Act is not applicable. The grounds raised in the matrimonial proceedings in Superior Court Los Angeles Country, California are not the grounds covered under the Hindu Marriage Act. It is denied that the respondent remained in U. S. A. as an independent unmarried woman and that the respondent has no contact with the revision petitioner except for five days after marriage. There is no desertion even as per American Law and no ground for desertion as per Hindu Law. The desertion mentioned in the judgment for dissolution of marriage does not confirm the requirements of desertion as per the provision of Hindu Marriage Act. It is denied that the respondent deserted the revision petitioner committing lot of cruelty against him and against his parents. It is also denied that the respondent never cohabited with the revision petitioner except for five days immediately after the marriage at Alwarthirunagar. The respondent lived with the revision petitioner after marriage till 30. 3. 2000 and the revision petitioner refused to live with the respondent when he came to U. S. A. in June, 2000 at the instigation of his parents. The respondent left U. S. A. in June, 2002 under the instruction of the revision petitioner so that they can rejoin in India, since the revision petitioner had planned to come to India in December, 2002 to settle down. Thereafter, the respondent did not go to U. S. A. and submitted to the jurisdiction of the Superior Court Los Angeles Country, California.