T SURESH BABU Vs. VIJILA

JUDGEMENT

(1.) The appellant is the husband. The respondent is his wife. The marriage between them took place on 20.08.2008 as per Christian rites and customs. The appellant is employed as an Electrician. The respondent is working as a Nurse. It is the specific allegation of the appellant that the respondent did not come forward to consummate the marriage. He therefore filed I.D.O.P.No.159 of 2011 on the file of the District Court, Nagercoil under Section 10(1)(vii) of the Indian Divorce Act. In the meanwhile, the respondent herein filed I.D.O.P.No.376 of 2010 on the file of the District Court, Nagercoil seeking restitution of conjugal rights. The wife examined herself as P.W.1 in I.D.O.P.No.376 of 2010 and marked Ex.P1 to P5. The appellant herein examined himself as R.W.1 and also marked Ex.R1. In I.D.O.P.No.159 of 2011, the appellant examined himself as P.W.1 and his maternal uncle Johnson as P.W.2. He marked Ex.P1 to P6. The respondent herein examined herself as R.W.1. The learned trial Judge disposed of both the petitions on the same day, by orders dated 23.10.2013. I.D.O.P.No.376 of 2010 was allowed while I.D.O.P.No.159 of 2011 was dismissed. Challenging the dismissal of I.D.O.P.No.159 of 2011, the husband filed C.M.A.(MD) No.325 of 2017. He filed C.M.A.(MD) No.324 of 2016 against the allowing of I.D.O.P.No.176 of 2010.

(2.) Both the C.M.As were taken up together. Heard the learned counsel R.Vijayakumar, appearing for the appellant. Notice was issued through the Court to the respondent. Court notices were sent in her name to the address given by the respondent in her petition. Notice had been received by one Santhakumari, who has endorsed that she has the authority to receive the notice. Name of the respondent viz., Vijila is mentioned in the cause list. She has not chosen to engage a counsel.

(3.) The learned counsel appearing for the appellant would contend that the appellant husband had clearly established his case by applying the principle of preponderance of probability. The marriage took place on 20.08.2008. He left for Qatar in October 2008. He returned to India on 15.06.2009. The respondent lodged a police complaint against the appellant on 27.06.2009. Her complaint was registered as C.S.R.No.178 of 2009 and an enquiry into the same was held. The appellant was summoned by the police. In the said police complaint lodged before the Sub Inspector of Police, All Women Police Station, Kuzhithurai, the respondent had levelled an allegation that she was a victim of domestic violence. But, on the same day, she had given a handwritten letter dated 27.06.2009 informing the Inspector of All Women Police Station, Kuzhithurai that there was difference of opinion between her and her husband and that her husband left for Overseas employment two months after the marriage and that he returned to the native place only 15 days earlier and that since her husband did not come forward for amicable talks, she was constrained to lodge a police complaint. She further stated in the said letter that there was an enquiry in the matter. The husband had stated that he was not willing to live with her. The respondent wife specifically mentioned that an understanding had been arrived at for resolving the matter. A specific statement has been made to the effect that by 15.07.2009, all the transactions would be concluded. Significantly, she also stated that through Court they will obtain divorce.