D NAGAPPAN Vs. T VIRGIN RANI

JUDGEMENT

(1.) BOTH these appeals have been filed by the husband. The Family Court dismissed F.C.O.P. No.674 of 1997 filed by the husband for divorce and allowed F.C.O.P. No.623 of 1995 filed by the wife, the respondent herein, for restitution of conjugal rights. The parties will be referred to as appellant and respondent, which is how they are arrayed in these appeals, so that there may be consistency in reference.

(2.) F.C.O.P. No.623 of 1995 was filed first and therefore, we will look at the pleadings therein.The couple got married in a Roman Catholic Church in Kanyakumari on 16.1.1989. According to the respondent, since she was the only daughter of her parents, her parents performed the marriage lavishly and bore the entire expenses. She is a Physics Graduate and had completed her P.G. Diploma Course in Computer Science. The appellant gave her to understand that he was qualified as an Engineer working in the Railways. To her shock, she found that he was only a Head Draftsman. Her parents questioned him as to why he uttered falsehood, but since the marriage preparations were at an advanced stage, they did not cancel the marriage. After the marriage, they resided together as husband and wife in Perambur. The appellant allegedly behaved in a rude and crude manner and used to ill-treat the respondent to appease his mother. It is stated that the appellant's mother was a cruel lady. But, inspite of all this cruel treatment, the respondent was carrying on as a dutiful wife. The respondent became pregnant. The delivery was complicated and the female child died. The appellant never cared to take her back to Chennai and after repeated requests, he reluctantly took her back to Chennai. The appellant was very friendly with one Viswanathan. The respondent did not like this and when she pointed this out to him, he abused her in unprintable language saying she should not question his relationship with Viswanathan and if she was unhappy, she could go back to her parents house. Then, she conceived her second baby. A female child was born on 31.7.1991, but that child also died. Due to prolonged medical treatment, the respondent suffered mental and physical agony. The appellant's attitude towards her was very bad and he did not pay her any care or attention and it was only the respondent's parents and brothers who gave her necessary support. When it was time to return to Chennai, she informed the appellant over telephone, when her parents took her to Chennai to her matrimonial home, they found the house locked. He had vacated the house on the previous midnight only with the motive of putting her to hardship. Therefore, the respondent stayed with her elder brother at Chennai. Since her efforts to find out his place of residence were unsuccessful, her brother went to his office, but on seeing her brother, the appellant left the office. After repeated efforts, they found out his address at Periyar Nagar and after much persuasion, he agreed to live with the respondent. The appellant's attitude towards the respondent became worse and worse and he also ill-treated her by demanding additional dowry for starting a rubber business with Viswanathan. Her pleas that he should not insist on further dowry fell on deaf ears and he also said that unless and until she brought the additional dowry, there would not be a peaceful marital life. Then he took to the old habit of spending time with his friends in clubs and other places. The respondent again conceived for the third time. This time, the appellant suggested that she should go to her parents' house at Nagercoil to have her parents' support, to which the respondent agreed. This time a male child was born. The entire medical expenses were born only by her parents. Even thereafter, he did not agree to take her back. The appellant was not agreeable to her joining him because she was complaining that his mother was treating her cruelly. Every time she requested him to take her back, he would avoid it on some pretext or the other. And again, she found that he would be satisfied only if the additional dowry was paid. The respondent once again came over to Chennai to join him, but again, the appellant had vacated the house at Periyar Nagar and she had to live with her brother. He told her that if she wanted to join him, she should go and reside with his parents and conduct herself as a servant and only then she could have conjugal rights. When she went to the Southern Railway Office to request for reunion, he physically dragged her to the Reception Desk to register her name, then took her to the police station to give a complaint. The Inspector of Police heard them and advised them to lead a happy married life. On 29.3.1995, when she went back to his office, the appellant took her in an auto-rickshaw pretending to take her to his home and then dropped her somewhere near his sister's house and ran away. On 31.3.1995, the respondent and her brothers sent to well wishers, Dorairaj and Sampath to do mediation between the couple, but they were informed that he was not willing because she did not pay the additional dowry and that she should live with his mother at Kulasekaram and that she should not come to Chennai. He had also given a false complaint that her brother had threatened her. So, she lodged a complaint in the All Women Police Station. In these circumstances, she filed the petition for restitution of conjugal rights.

(3.) THREE witnesses were examined on the side of the respondent and one witness was examined by the appellant, which was himself. Thirteen documents were marked by the respondent and five by him. The learned Principal Judge, Family Court, found that the appellant had not proved his case that the respondent was residing with one Dorairaj. The Family Court had observed that the couple had lived separately without having any intentions of separating from each other and that none of the documents support the case of the appellant. We will have to examine whether the judgment of the Family Court is sustainable.