THANGAM Vs. M RAJESH

JUDGEMENT

(1.) These Civil Miscellaneous Appeals arise out of the common order passed in HMOP Nos.174 and 373 of 2014, dated 12.02.2015 on the file of the Family Court, Tirunelveli.

(2.) The un-controverted facts are that the marriage between the petitioner/wife and the respondent/husband was solemnised on 19.11.2009; out of the lawful wedlock, they were blessed with a male child on 02.02.2011 and that the petitioner was sent to her parental home by the respondent for delivery and after delivery of the child, the respondent failed to see her and her child and he completed neglected her. Thereafter, the respondent filed a divorce petition at Andhra Pradesh and for that, the petitioner filed a transfer petition before the Hon'ble Supreme Court of India and the same was transferred to the file of the Sub Court, Tirunelveli and again made over to the file of the Family Court, Tirunelveli, in HMOP No.174 of 2014. The petitioner also filed a petition seeking restitution of conjugal rights and the same was subsequently made over to the file of the Family Court, Tiruneveli, in HMOP No.373 of 2014. The above two HMOPs were tried together and by a common judgment, dated 12.02.2015, the learned Family Court, Tirunelveli, allowed the HMOP No.174 of 2014 filed by the respondent/husband seeking divorce and dismissed the petition in HMOP No.373 of 2014 seeking restitution of conjugal rights. Aggrieved over the common judgment the present civil miscellaneous appeals have been filed by the wife.

(3.) The learned counsel for the appellant/wife submitted that the trial court has committed error in granting the decree of divorce, when the respondent/husband failed to prove the alleged desertion and cruelty by the wife and erroneously dismissed the petition seeking restitution of conjugal rights and that the trial court has ignored the fact that the respondent did not evince any interest to bring his wife and child to his house, whereas the wife had tried her level best to communicate her husband and she was clamoring for the matrimonial home and that the trial court has granted the decree of divorce on the ground that the wife has filed the petition seeking restitution of conjugal rights after three years, which is not maintainable in law and that the trial court has failed to see that she never left the matrimonial home on her own, but she was sent to her parental house only by the husband for delivering the child and the husband also admitted during the cross examination that he only took her to the railway station and sent her for delivery and the trial court has not considered the welfare of the minor child before granting the relief of divorce and that the trial court has committed a grave error in shifting the entire responsibility and burden on the wife to prove the case of the husband. In view of the above facts, the common order passed by the trial court has to be set aside and the appeals are to be allowed.