PURUSHOTHAMAN Vs. SHASIKALA

JUDGEMENT

(1.) THIS appeal has been filed challenging the order of the Family Court dated 02. 07. 2003 dismissing the appellant's application for divorce on the ground of cruelty, filed against his wife. In this appeal, though notice was duly served on the respondent/wife as early as 07. 02. 2009 through Court, the respondent has chosen not to take any steps either to appear in person or through counsel. We have therefore decided to proceed with the appeal on merits.

(2.) WE heard Mr. R. Subramanian, learned senior counsel appearing for the appellant.

(3.) THE brief facts which are required to be stated are that the appellant and the respondent got married on 28. 05. 1978 according to Hindu Rites and Customs. Initially, they were stated to have been living as husband and wife at Dharapuram and subsequently on transfer, the appellant stated to have shifted to Coimbatore on 29. 09. 1978, where he is stated to have settled down. According to the appellant, the marriage was a short lived one inasmuch as the respondent left the matrimonial home on 20. 10. 1978. It is also the case of the appellant that to his knowledge, the respondent was stated to have had intimacy with somebody else even prior to the marriage and that even after the marriage, she continued to maintain the said relationship, which was not liked by the appellant. It is stated that when the appellant advised her to correct herself, the respondent instead of correcting herself, decided to leave the matrimonial home on and after 20. 10. 1978. The appellant has further alleged in his application before the Court below that he was also physically assaulted, at the instance of the respondent, with the help of rowdy elements and he was beaten with chappals, in which process, he sustained injuries. It is further alleged that one of the aids of the father of the respondent went to the extent of removing the sacred thirunamam from the forehead of the appellant. The appellant has also alleged that at the time when the respondent left the matrimonial home, she was confined but subsequently it came to light that she underwent D and C and after sometime, had an abortion on 29. 04. 1979. It is also stated that earlier the appellant moved the II Additional Family Court, Coimbatore in O. P. No. 132 of 1984 for divorce on the ground of desertion by the respondent and that though initially, the trial Court granted the decree for divorce, the same was set aside in appeal, by the learned District Judge, Coimbatore in C. M. A. No. 80 of 1986 on 02. 03. 1987, which was also confirmed in C. M. S. A. No. 57 of 1987 by this Court on 14. 10. 1988 as well as by the Hon'ble Supreme Court in S. L. P. (Civil) No. 15597 of 1988 dated 10. 02. 1995. In the meantime, the respondent is stated to have filed O. S. No. 1559 of 1986 before the District Munsif, Coimbatore for maintenance, which was decreed on 29. 04. 1991. The said decree was however set aside in A. S. No. 145 of 1991 on 23. 09. 1991 by the Principal Sub Judge, Coimbatore. The respondent is stated to have preferred second appeal in S. A. No. 67 of 1992 and in the said second appeal, a compromise decree came to be granted on 17. 07. 2002. As per the decree of compromise, the appellant agreed to pay a sum of Rs. 75,000/- by way of one time settlement towards maintenance claimed by the respondent. Both parties agreed to file necessary application in the pending H. M. O. P. No. 608 of 2001 for converting the said O. P. as one for divorce by consent under Section 13 B of the Hindu Marriage Act. The said compromise memo signed by the appellant, respondent and the respective counsel on 17. 07. 2002 was accepted by this Court and a decree in terms of the said compromise memo was also granted. However, subsequent to the said decree, though the appellant appeared before the Court below for carrying out necessary amendment, the respondent is stated to have abandoned, since as could be seen from the various dates of hearings posted by the Court below from 14. 08. 2002 till the impugned order came to be passed on 02. 07. 2003. The O. P. was posted on 14. 08. 2002, 19. 09. 2002, 06. 11. 2002, 10. 01. 2003, 29. 01. 2003, 26. 02. 2003, 28. 03. 2003, 09. 04. 2003, 05. 05. 2003, 23. 06. 2003, 26. 06. 2003 and 02. 07. 2003.