RAMOJI Vs. KAMESWARI

JUDGEMENT

(1.) These two appeals are preferred against a common judgement of the learned subordinate Judge, Vijayawada, in G. P. No. 130 of 1968 and O. S. 250 of 1968 of respectively, O. S. 250)/68 was filed by the respondent in these appeals against her husband for maintenance at the rate of Rupees 75/-p. m. from the date of suit and for arrears at the same rate and for Rs. 500/- for Separate residence. O. P. No. 130/63 was filed by the first appellant in the transferred appeal and the sole appellant in the CMA for a declaration that the Marriage between him and the respondent was a nullity or in the alternative for restitution of conjugal rights. The parties will be referred to as the husband and wife as has been done in the court below.

(2.) The wife filed the suit for maintenance with the following allegations: The marriage was solemnised on 1-5-1966 at Palakol. West Godavari District and consummated on 8-5-1966 The wife was taken to her husband's house at Vijiyawada on 9-5-1966. She stayed there till about 15-6-1966 and she returned to her parent's house. She again joined the husband in his family residential house at Vijayawada on 23rd July, 1966 and stayed till 30th September, 1966. Daring these short periods of stay the husband and other members of the family treated her with cruetly and beat her several times mercilessly. The husband and his parents made preparations for getting him married to a second wife. Finally, they drove her out on 30-9-1966. The husband married a girl by name Kameswari, daughter of one Adusumilli Venkatappaiah on 30th March, 1967 at Avanigadda. The husband is living with the second wife who was in an advanced stage of pregnancy on the date of suit. Subsequently, a son was born to them. The husband filed a written statement denying any cruelty on his part or on the part of his parents. He stated that it was found that his wife was incapable of sexual intercourse and unfit for matrimonial life. He got her medically examined snd treated but it was of no use. This fact was intimated to the wife's father who came and took her away in June, 1966. The wife returned and joined him in July, 1666, but even after her return she was found unfit for co-habition. She refused to get herself medically examined and treated. He also denied that he ever contemplated or made attempts to marry a second wife. The allegation that he married one Kameswari on 30-3-1967 was false. The plaintiff was not driven out from her house on 30-9-1966, but because she expressed her unwillingness to live with her husband, she was taken away by her ftather saying that his daughter was not willing to live with her husband and he will try once again and get her cured and send her back. On parctically the same allegations the husband filed O.P. No. 130/68 for a declaration that the marriage was a nullity or in the alternative, for restitution of conjugal rights After the filng of the petition, the wife was examined by a lady doctor in Guntur Medical Hospital. The lady doctor issued a certificate saying that there was nothing to suggest that the wife was incapable of sexual intercourse. In view of this certificate, the husband gave up the ground of his wife's impotency and did not press for the relief of declaration of the nullity of the marriage, but pressed only the relief of restitution of conjugal rights.

(3.) The court below after consideration of the evidence held that the second marriage of the husband was not proved and therefore, the wife was not entitled to claim separate maintenance and residence on that ground. It however, held that as the wife was found not to be suffering from any disability as alleged by the husband, it followed that the husband was responsible for sending the wife away on the imaginary ground of impotency. The wife was sent away without any fault on her part and without any justifiable cause. In the result, the court below held that the wife was entitled to maintenance as claimed by her, and awarded at the rate of Rs. 40/- p.m. from the date of suit and Rs. 200/- towards separate residence. It decreed the suit accordingly; for the same reason it dismissed O.P. No. 130/68. The husband and his father who was also made a party to the suit preferred an appeal to the District Court, Krishna, against the decree in the suit and the husband preferred the CMA. against the dissmissal of his O.P. The appeal in the District Court has been transferred to this court and numbered as Tr.A.S. No. 438/71. The two appeals which arise out of the common judgement have been heard togethsr. On behalf of the wife, it has been contended that the finding of the court below against her that the second marriage has not been proved is not correct. If that contention is accepted there can be no doubt that she is entitled to separate maintenance. It is therefore, convenient to consider that question first.