S MURUGESAN Vs. SANTHANALAKSHMI

JUDGEMENT

(1.) This appeal is filed by the appellant aggrieved by the order dated 31.07.2005 passed in F.C.O.P. No. 2157 of 2004 on the file of the learned First Additional Family Court, Chennai, by which the Original Petition filed by the appellant under Section 13 (1) (i-b) of The Hindu Marriage Act for dissolution of the marriage on the ground of desertion was dismissed.

(2.) The averments made in the F.C.O.P. No. 2157 of 2004 filed by the appellant before the Family Court are to the effect that the marriage between the appellant and the respondent was solemnised on 09.11.1981 at Nataraja Kalvi Kazhaga Kalyana Mandapam at No.13, Mallan Ponnappa Mudali Street, Triplicane, Chennai as per Hindu rites and customs. Due to the wedlock, the respondent gave birth to a male child on 001.1983. According to the appellant, the marriage life was happy and blissful for a short period and thereafter, there were matrimonial disputes which cropped up between the appellant and the respondent due to the illicit intimacy the respondent had with a person namely Mohankumar, who was running a provision store at John Johnkaran Street, Triplicane, Chennai. In this context, frequent quarrel emanated between the appellant and the respondent. The appellant and the respondent lived together only till 17.01986 and thereafter, the respondent deserted the matrimonial company of the appellant. After desertion, the appellant filed O.P. No. 1028 of 1988 for dissolution of the marriage on the ground of adultery and it was contested by the respondent. Ultimately, by an order dated 03.01.1992, the OP No. 1028 of 1988 was dismissed by the Family Court. As the appellant was out of the City in connection with his avocation, he could not file an appeal as against the order dated 03.01.1992 dismissing OP No. 1028 of 1988. As a sequel to the petition filed by the appellant for dissolution of the marriage, the respondent filed M.C. No. 32 of 1996 under Section 125 of the Code of Criminal Procedure in which the appellant was directed to pay maintenance to the respondent at the rate of Rs.100/- per month. Subsequently, the respondent filed another Petition in M.P. No. 845 of 2004 for enhancement of maintenance amount in which an order dated 20.09.2004 was passed directing the appellant to pay maintenance at the rate of Rs.1,000/- per month. It is also stated in the Original Petition that the appellant has filed a Petition seeking custody of the minor child and pursuant to the order passed by the Family Court, the custody of the minor child was given to the appellant and it is the appellant who is in custody of the child and providing him education befitting his status. After the male child become major, he went and stayed with the respondent. During the pendency of the above proceedings, the respondent failed and neglected to join the appellant to lead a happy matrimonial life. The appellant and the respondent are residing separately for about 18 years and there is no chance for reunion. Therefore, the appellant has filed the instant F.C.O.P. No. 2157 of 2004 for dissolution of the marriage on the ground of desertion.

(3.) The Original Petition was contested by the respondent by filing a counter affidavit stating that the averments made in the Original Petition are false and therefore they are not admitted. The averment that the respondent was living an adulterous relationship with one Mohankumar is denied as false and misleading. It is further stated that O.P. No. 1028 of 1988 was filed by the appellant for dissolution of marriage on the ground of adultery and it was contested by the respondent and ultimately it was dismissed on 001.1992. As against the order of dismissal, the appellant has not filed any appeal and it has become final. It was further stated that the appellant got married to another lady through whom a female child was born. Since the appellant was not willing to repent for the false allegation made against her in the Original Petition, she is residing separately. The allegations levelled against the respondent as though she is living an adulterous relationship with one Mohankumar has caused her mental agony. The respondent never deserted the appellant voluntarily and the desertion has been necessitated due to the cruel attitude and harassment caused to her by the appellant. In any event, when once the Original Petition filed by the appellant for dissolution of marriage on the ground of adultery was dismissed, the instant Original Petition filed for the same relief of dissolution of the marriage on the ground of desertion is not maintainable. The very same averments made in the earlier Petition for dissolution of the marriage were made in the present Original Petition as well and therefore also the Original Petition is not maintainable. The present petition is filed only to harass the respondent. The respondent is ready and willing to live with the respondent and therefore, she prayed for dismissal of the Original Petition.