S. SATHISHKUMAR Vs. R. THANGAMANI @ MAINAVATHY

JUDGEMENT

(1.) The appellant is the wife who has filed this appeal, challenging the Order and Decretal Order passed by the Family Court, Erode, granting divorce under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955.

(2.) Brief facts leading to the filing of the Hindu Marriage Original Petition by the respondent/husband seeking divorce in H.M.O.P. No. 244 of 2014 on the file of the Family Court, Erode, was that the marriage between the appellant and the respondent was solemnized on 30.04.2007 at Sri Amman Kalaiyarangam, Kompanaipudhur, Kolathupalayam Village, Kodumudi Taluk, Erode District, according to Hindu rites and custom; that the appellant lived with the respondent only for 3 months and in the meanwhile the appellant conceived and out of the wed lock, a female child was born on 10.04.2008; that the respondent went to the appellant's parent's home for visiting his wife and child and at that time the appellant's brother picked up quarrel with the respondent, humiliated him and abused him with unparliamentary words; that the respondent asked the appellant to come to the matrimonial home for reunion, but the appellant refused to come forward to reunite with the respondent; that even though the respondent as well as the respondent's parents and relatives had made several attempts for the reunion of the appellant with the respondent, the appellant adamantly refused to come forward to matrimonial home; that the respondent filed H.M.O.P. No. 72 of 2010 on the file of the II Additional Sub-Judge, Erode under section 9 of the Hindu Marriage Act, for Restitution of Conjugal Rights and the same was ordered on 13.12.2010 directing the appellant/wife to come forward for reunion within two months; that the appellant did not obey the order of the learned Sub-Judge, for Restitution of Conjugal Rights; that though the respondent had taken steps for reunion in the year 2011-2012, the brother of the appellant did not want to allow his sister to live with her husband, only with an intention to receive his sister's earning; that the respondent had given a police complaint on 10.05.2012 to advice the appellant to obey the order of Restitution of Conjugal Rights; that since the appellant was not even heeding the advice of the police officer, the respondent issued a legal notice dated 30.05.2012, calling upon the appellant for reunion with the respondent; that the appellant neither come forward to reunion nor send reply to the respondent. Hence, the respondent was constrained to file the petition for divorce.

(3.) The appellant/wife had filed a counter alleging that the respondent after the birth of the child did not take any steps to see the child; that the respondent had not shown any care towards the appellant and the child; that the maintenance proceedings initiated by the appellant in M.C.No.3 of 2014 on the file of the Family Court, Erode was disposed of only after 8 years and that the respondent/husband did not pay any maintenance amount towards the appellant and the minor child; that only after institution of the maintenance proceedings the respondent/husband had filed H.M.O.P. No.72 of 2010 and sought for restitution of conjugal rights and that the said application was allowed on 31.12.2010; that the respondent/husband had sought for divorce on the ground of cruelty and desertion in H.M.O.P. No.244 of 2014 before the Family Court Erode wherein the appellant/wife had filed her detailed objections; that there is no evidence to show what is the cruelty committed by the appellant/wife; that absolutely there is no pleadings and materials to show that the appellant/wife had committed cruelty on the respondent/husband; that the respondent/husband has filed the petition for restitution of conjugal rights only to defeat the maintenance proceedings and that he did not come forward to maintain the appellant/wife and child which he is legally bound to do; that the burden of proof always lies on the respondent/husband to establish beyond reasonable doubt to the satisfaction of the court, the allegation of desertion throughout the entire period of two years before filing the petition. Hence, she prays for dismissal of the petition.