MURAHARI RAO Vs. VASANTHA MANOHARI

JUDGEMENT

(1.) The appellant is the petitioner in O. P. 76 of 1977. The petition was filed under Sec. 13 (1-A) (ii) of the HINDU MARRIAGE ACT, 1955 seeking dissolution of the marriage on the ground that the respondent-wife did not comply with the earlier decree passed for restitution of conjugal rights in O.P. No.36 of 1976,

(2.) The essential averments in support of the petition are that the marriage was Celebrated on 27-4-1975 and subsequent to the marriage the respondent-wife came and lived with the petitioner for a few days, and left the house and thereafter the petitioner made several attempts to persuade the retpondent to come and live With him, but she refused to do so and continued to stay at her parents house at Gudavalli village and the petitioner was obliged to file O.P.No. 36 of 1976 on the file of the Court of the Subordinate Judge, Tenali, for restitution of conjugal rights against the respondent. The petition was ordered on 9-7-1976. As the respondent wife failed to comply with the decree, E.P. No. 35 of 1977 was filed by the petitioner and a notice was issued to the respondent. Inspite of the same she refused to join and live with him. Therefore, the petition for dissolution of marriage was filed. Subsequently, an amendment petition was also filed to the effect that the respondent deserted the petitioner for a continuous period of not less than two years.

(3.) In the counter-affidavit filed by the respondent-wife it is stated that the petitioner refused to allow her to come and live with him as her father did not pay the amount demanded by the petitioner. The respon dent's father paid an amount of Rs. 14,000/- for her benefit to the father of petitioner and the said amount was utilised for their own family benefit and when the petitioner and his father again demanded to pay the balance amount of Rs.6,000/- her father insisted that account should be rendered for the amount already paid to them. It is also stated that her father agreed to deposit the sai'd balance amount of. Rs. 6000/- in her name in any Bank. But the petitioner and his father refused to agree for such a course and insisted that hey would not allow her to come and live with the petitioner unless and until the balance amount of Rs.6000/-was paid to them. It is further stated that she was always willing to go and live with the petitioner, and that when the petitioner filed O.P.No. 36/76 she appeared before the Court and gave her consent to live with the petitioner and oh that basis the Court allowed O.P.36/76. Subsequent to the passing of the said decree, she made efforts to go and live with the petitioner, but the petitioner alone was refusing to take her back unless the balance amount of Rs. 6,000/- was paid to him. Therefore, she was not at fault in complying with the directions given by the Court in O.P.No. 36/76. It is also stated that in the execution-petition filed against her in O. P. 36/1976 the petitioner managed to obtain a false endorsement of refusal on the notice and set her ex-parte in those proceedings and after coming to know about the same a petition was filed for setting aside the ex-parte order and in the meanwhile the execution-petition was dismissed for default. It is further stated that the petitioner was never willing to take her back and live with her and O.P.36/1976 and Execution Petition No. 35/77 were filed only with a view to create a ground for divorce and as such the present petition is not maintainable. It is also stated that she never deserted the petitioner. The sole issue for consideration before the Court below was whether the petit oner is entitled for dissolution of the marriage under Sec. 13 (1-A) (ii) of the HINDU MARRIAGE ACT, 1955.. On a survey of decisions, the Court below came to the conclusion that Sec. 13 (1-A) (ii) is subject to the provisions of Sec. 23 (1) (a) of the HINDU MARRIAGE ACT, 1955. The Court below held that the petitioner alone was at fault both prior to the passing of the decrte in O. P. 36/1976 as well as subsequent to the same and that he alone was causing obstructions to the respondent to come and live with him and that the respondent was always ready and willing to go and live with him and lead marital life. The finding was arrived at by the Court below that the petitioner managed to obtain a false endorsement of refusal on the notice in E.P.35/1977 and that the bona fides of the respondent are evident from the prompt action taken by her in filing a petition for setting aside the ox parte order passed against her in F:P.35/1977.