A KARUNAMBIGAI Vs. V KANAGASABAPATHY

JUDGEMENT

(1.) THE unsuccessful wife before the Lower Appellate Court has preferred this second appeal.

(2.) THE facts which are necessary for the disposal of this appeal can be briefly stated as follows: THE respondent herein filed the petition H.M.O.P.No.35 of 1983 Under Section 13(1)(a) of the Hindu Marriage Act for dissolution of the marriage between him and his wife, the appellant herein. THE case of the respondent is that the marriage between him and the appellant took place on 26.3.1980 as per Hindu sastricrites and the custom of the community and thereafter they lived together amicably for about seven months. THE appellant went to Coimbatore in May, 1982 for confinement and later she gave birth to a male child. Arunkumar. About seven months after delivery, the respondent went to Coimbatore and requested the appellant to return to Karur along with him. She refused to come and live with the respondent. All efforts taken by the respondent to prevail upon her to return to Karur proved to be of no avail. THE appellant had deserted the respondent without any reasonable or probable cause. Subsequently, he gave a notice on 29.3.1983 through his counsel. THE appellant sent a reply with false, frivolous and defamatory allegations and she had gone to the extent of saying that the respondent is a womaniser, drunkard and gambler and further the respondent is a person who would go to the extent of earning through his wife by hook or by crook thereby describing the respondent as a pimp. THE above allegations made in the reply have inflicted mental agony to the respondent and as such she has committed legal cruelty to the respondent. Hence the respondent filed the petition for divoce.

(3.) THE trial sub Judge framed four issues with regard to the alleged desertion and cruelty on the pleadings. On the side of the respondent, he examined himself as P.W.I and another witness P.W.2, and Ex.A.1 notice and Ex.A.2 reply were marked. On the side of the appellant, she examined herself as R.W.1 and Ex. B.1 to B.8 were marked. THE Sub Judge for the reasons assigned in his judgment dismissed the petition holding that the respondent has not made out any case for grant of dissolution. Aggrieved by the same, the respondent filed the appeal before the District Judge in C.M.A.No.9 of 1986. THE District Judge on the basis of the allegations stated in the reply notice came to the conclusion that those allegations would amount to legal cruelty and consequently allowed the appeal and granted a decree for divorce. THE aggrieved wife has preferred this second appeal and the same was admitted on the following substantial questions of law: 1. Whether the lower appellate court is justified in granting a decree for divorce solely relying on Ex.A-2 overlooking that Ex.A-2 did not contain any wilful allegation but was written only under provocative circumstances in order to reform the respondent herein" 2. Whether the lower appellate court is justified in reversing the well considered judgment given in respect on both the grounds"