A JANAKI Vs. J JOHN KENNEDY

JUDGEMENT

(1.) THE defendant in O.S.No.134 of 2006 is the appellant before this Court. She is aggrieved by the judgment of the Subordinate Judge, Sivakasi, dated 02-04-2008 made in A.S.No.21 of 2007, reversing the judgment dated 29-03-2007, made in O.S.No.134 of 2006, on the file of the District Munsif, Sivakasi.

(2.) FOR the sake of convenience, the parties are referred to as per their rankings in the suit.

(3.) IT is pointed out by the plaintiff in the plaint that prior to filing the present suit, he filed O.P.No.1 of 1995 for divorce under the Special Marriage Act, before the District Court, Srivilliputhur. That petition was reistted by the defendant and the District Court held that since the marriage did not take place as per the Special Mariage Act, the petition is not maintainable and accordingly, the petition was dismissed. Now, the defendant filed a maintenance application in M.C.No.165 of 2005 against the plaintiff before the family Court at Chennai alleging that she is the wife of the plaintiff. Hence, he filed O.S.No.134 of 2006 for the aforesaid relief. The defendant filed a written statement wherein it was stated that she is the wife of the plaintiff and she denied that she informed the plaintiff at the time of the first night that she was in love with another person,. She contended that O.P.No.1 of 1995 was dismissed on merits and the Court held that the defendant was neglected by the plaintiff and the plaintiff and his parents treated the defendant cruelly. The Principal District Court, Srivilliputhur further found that the defendant was always willing to live with the plaintiff and there was also sexual intercourse between them and they lived as husband and wife. According to the defendant, the judgment of the District Court, Srivilliputhur, made in O.P.No.1 of 1995 is a bar for filing the present suit and therefore the suit is barred by constructive res judicata. Having gone before the District Court, Srivilliputhur, by contending that there was a marriage between the plaintiff and the defendant and seeking divorce in O.P.No.1 of 1995, the plaintiff cannot now turn around to say that there was no marriage and the defendant is not his wife. IT is pointed out by the defendant in the written statement that the suit has been filed after 14 years from the date of the marriage and therefore, the same is hit by law of limitation. This suit is only a counter-blast to the maintenance case filed by her in M.C.No.165 of 2005 and therefore, there are no merits in it. IT is further alleged by the defendant that the plaintiff got married to another women on 07-06-1995 without the consent of the defendant and two children were also born to them out of the above said illegal marriage. She further stated that she was converted to Christianity on the advice of the plaintiff on 19-04-1992 itself and hence, she prayed for the dismissal of the suit.