SOLOMON DEVASAHAYAM SELVARAJ Vs. CHANDIRAH MARY

JUDGEMENT

(1.) THIS is a petition under section 32 of the Divorce Act, 1869 by a husband for restitution of conjugal rights against his wife. The parties are Indian Christians. They were married on 26th May, 1955. The husband was then living with his brother and his family and the wife was taken to that house. Soon after about the middle of July, 1955, the wife was taken to her parents' house for the month of 'Adi' as is usual in the south in the case of newly married brides. She came back to the husband's house not at the end of Adi but much later. It appears that the wife used to go to her parents' house off and on and once the husband's brother's father-in-law had to go and persuade the wife's parents to send her to her husband's house and another time one Rev. Chinniah had to be approached. Ultimately in 1959, the wife filed a petition before the Chief Presidency Magistrate under section 488, Criminal Procedure Code, for maintenance. As a result of what happened in the Court, the husband set up a separate home to which both the parties moved on 19th November, 1959. After about three weeks, the wife was taken away by her father to his house and thereafter, the parties had not been cohabiting together. Immediately after the wife went to her parents' house, she filed another petition for maintenance and without much contest, she was awarded a sum of Rs. 25 per mensem as maintenance on 18th January, 1960. In 1965, she filed another petition for enhancement of maintenance and it was enhanced to Rs. 35 per month with the consent of both the parties. Thereafter, the husband sent a notice demanding that his wife come and live with him and followed it up with the present petition.

(2.) THE wife's contention is that she was treated with cruelty by her husband and his sister-in-law and that therefore, she was forced to leave.. She also alleged that her husband had illicit intimacy with his sister-in-law and that because she found it out her husband and his sister-in-law began to ill-treat her. She further alleged that after they set up a separate establishment soon after the first petition for maintenance, the husband never lived in the house and was always taunting her saying that as she wanted a separate house and he had provided it, she should be satisfied with it and that she could not expect any other husbandly actions or attitudes from: him, and that was why, she had to leave, on the 14th December, 1959. On the other hand, the petitioner's case was that the respondent had already, even before her marriage, given her heart to another young man and that she was, therefore, unwilling to have normal sexual relations with the petitioner, and that the respondent's . father was trying to get a divorce for her and also a lump sum from the petitioner so as to enable the respondent to be married to another young man.

(3.) WHAT has happened about the necklace given to the respondent by her father is that because of his needs and because he had to incur some debts in connection with the respondent's marriage, her father seems to have pledged it. This is clear from the letter Exhibit P-6 written by the respondent herself to her father. I cannot accept her evidence that that letter was not written by her and that she cannot read well. This is only a pretence; nor can I accept her father's evidence that he is not able to say whether it is a letter written by his daughter. I accept the petitioner's evidence with reference to this letter. Respondent's father also accepts that he pledged it. In fact, it is this fact of having pledged the necklace and also probably respondent's father's inability to provide the things necessary to set up a household, that seems to have been responsible for the delay in the respondent being sent back to her husband's house.