SAROJA Vs. ARUMUGHAM

JUDGEMENT

(1.) THE facts which are necessary for the disposal of these two appeals are briefly as follows: THE appellant herein (wife) filed o. P. No. 144 of 1978 before the Principal Sub Judge, Cuddalore, under S. 9 (l) of the Hindu Marriage Act for restitution of conjugal rights, and after summons were received in the above proceedings, the husband, who is the respondent in these appeals, filed O. P. No. 158 of 1978 for dissolution of Marriage under s. 13 (l) of the Hindu Marriage Act on the ground of desertion. THE case of the appellant is that she married the respondent on 16-9-1967 according to Hindu sastras in her husbands house in Melkangay-ankuppam. THEreafter they lived together at Melkangayankuppam for some time and later at Thiruvannamalai where the respondent was working as Assistant Professor in Government College . In September, 1968, she gave birth to, a female child by name Meenakshi and in april, 1972, she gave birth to another female child by name Dhanalakshmi. After the birth of the second child, she returned to her husbands house and lived with him for about a year and more. During that period, the respondent began to ill-treat her and beat her often. His mother Chinnammal and sister Kullayee also ill-treated her at the instigation of the respondent. She was bearing all the ill-treatments as a dutiful wife for the interest of her two children and with the intention of living with her husband. She was unable to bear the sufferings meted out to her at the hands of her husband, his mother and sister. She was finally driven out of the house in 1973. She was staying in her parents house at Puliyur since that date. Her husband refused to take her back as he intended to marry Rose, who is the daughter of his sister Kullayee as his second wife. Kullayee and her daughter were also staying with respondent. THE appellant refused to give her consent for such second marriage and that was also one of the reasons for the ill-treatment meted out to her and driving her away out of the house. She approached the respondent on two occasions along with one Pachai Ammal and requested him to take her back, but in vain. THE respondent began to make unreasonable demands in the shape of money, lands and houses from her parents. All attempts made by her father along with panchayatdars to persuade the respondent to take her back proved to be of no avail since the respondent insisted to marry his niece Rose as his second wife. Having failed in all her attempts to join with the respondent in a peaceful way, after exchange of notices she has filed the petition for restitution of conjugal rights. She emphatically denied the allegations in the petition filed by her husband for divorce (consequent to her petition for conjugal rights) as untrue and stated that she never deserted her husband: but, on the other hand, her husband drove her away with mala fide intention.

(2.) THE case of the respondent is that though he married the appellant and got two children through her (Meenakshi and Dhanalakshmi), he never had a happy life with his wife on account of insult and misbehaviour of his wife. He is a lecturer in Thiruvannamalai Arts College. His wife returned to his village Melkangayankuppam after the birth of the second child, in May, 1972. THEreafter she left the house in June, 1972 to her parents house without any reasonable or probable cause, abandoning her two children. Since she deserted him for six months without any justification, he is entitled to a decree for divorce. He denied that he and his mother and sister ill-treated the appellant and also his demand for marriage of his sisters daughter as his second wife. He would contend that since his wife (appellant) made his life miserable, he is not bound to take her back. Hence he prayed for dissolution of marriage and also the dismissal of the petition of the appellant for restitution of conjugal rights.

(3.) IT is also argued by the learned counsel for the respondent that the appellant left the one month infant child and deserted the husband. IT is highly improbable and unacceptable that the wife of her own accord left the child of a tender age. On the other hand, the version of the appellant-wife is probable and natural that she was ill-treated and she was beaten and driven out of the house and that she was not allowed to take her child. Since the lower appellate Judge has not approached the case with reference to the relevant provisions of the statute on the question of desertion and had also overlooked the material evidence and reversed the well-considered judgment of trial court, certainly this is a fit case where this court can interfere in the second appeal. In the instant case the respondent-husband cannot take advantage of his own wilful neglect. Further, the wife has every justifiable cause to live away from him. She made all honest attempts to join with him and she had also issued a notice expressing her willingness to join with him. She also filed a petition for restitution of conjugal rights. Only as a counterblast, the respondent has filed the petition for divorce on the ground of desertion. Except hisipse dixit there is no other evidence adduced on his behalf. He has not made out a case for dissolution of marriage on the ground of desertion. On the other hand, the appellant-wife has made out a case for restitution of conjugal rights by adducing satisfactory and acceptable evidence. This is one of the cases where the lower appellate court did not give any cogent reason for differing from the findings of the trial court and on the other hand it completely ignored the material evidence and chose to draw adverse inferences for reasons which are not valid and as such the finding of the lower appellate court is not sustainable. For all these reasons, I am of the view that the judgment of the lower appellate judge is not sustainable and as such, it has to be set aside and the substantial questions of law are to be answered accordingly in favour of appellant.