VIJAYALAKSHMI BALASUBRAMANIAN Vs. R BALASUBRAMANIAN

JUDGEMENT

(1.) AGAINST the order of judicial separation in a petition filed by the husband in O.P. No.1 of 1988 under Sec. 13 of the Hindu Marriage Act, the wife has filed the present appeal. Originally the husband has filed O.P. No.450 of 1982 before the City Civil Court, Madras for grant of divorce under Sec.13 of the Hindu Marriage Act on the ground of desertion as well as cruelty. After the formation of the Family Court, the said O.P. has been transferred to the Family Court and numbered as O.P. No.l of 1988. Though in the petition it is mentioned as under Sec.13 of the Hindu Marriage Act, actually the relief is sought for under Sec.l3(l)(ia) and (ib) of the Hindu Marriage Act, 1955. The case of the husband as seen from the petition is narrated hereunder:

(2.) IT is further averred that in the month of February, 1971 first child was born and in the month of May, 1975 second female child was born. The respondent also demanded separate establishment. Even after some time there was no improvement in the respondent -s behaviours. In the evening it was invariably a shower of abuses and shoutings at the children and beating them for nothing. It is also averred that the petitioner decided to stop talking with the respondent thinking that it would teach her a lesson to behave better and make her mend her ways. From June, 1979, things worsened to such an extent that the extent that the respondent used to leave the house whenever she wanted and return at odd times in the evenings and night. The petitioner was shocked when the respondent told him in August, 1979 that she had conceived. However, he did not believe the same and thought that the respondent was saying it only as a threat. In September, 1979, she left the house without informing anybody and the petitioner verified and found that she had gone away to her parents - house at Naganallur. Since then she has been staying there. It is also averred that the respondent left the petitioner against his expressed wishes and without any justifiable cause despite the warning of the petitioner that he will not entertain the respondent back if she leaves home this time. But without paying heed to the words of the petitioner, she left for her parents house at Naganallur. Till date she continues to stay there. Moreover her conduct and character are not above board and the birth of the third child is a mystery. With these averments he prayed for decree for divorce on the ground of desertion as well as cruelty.

(3.) THE petitioner, husband himself was examined as P.W.1 and he has also examined one Ramakrishnan alias Mani as P.W.2 apart from marking Exs.A -1 to A -6 in support of his plea. On the other hand, the wife herself was examined as R.W.I and one Vaidynathan was examined as R.W.2. She also produced and marked Exs.B -1 to B -24 in support of her defence. By order dated 19.5.92, the court below after holding that the petitioner has established both the grounds, namely, desertion and cruelty, in view of family circumstance and considering the welfare and interest of the two minor female children, instead of relief of divorce, granted a decree for judicial separation under Sec.l3 -A of the Hindu Marriage Act. The said order is being challenged by the wife in the present appeal.