N BABJI Vs. N SARADA

JUDGEMENT

(1.) This revision is Referred against the order dated 29-12-1995 passed by the learned Judge, Family Court, Visakhapatnam in MP No.94/95 in MCNo.15/1985 dismissing the petition.

(2.) The facts in brief, resulting in filing of this revision, are as under : The revision-petitioner herein is the husband of the respondent herein. For the sake of convenience, they are referred as wife and husband hereinafter. The respondent herein is the legally wedded wife of the petitioner. They lived happily for some time. As disputes arose between them, they are living separately. The wife filed OP No.122/82 on the file of the I Additional Subordinate Judge, Visakhapatnam for restitution of conjugal rights and that was allowed on 30-12-1982 directing the petitioner herein to go and live with the respondent, and give conjugal happiness to the respondent. Ex.P1 is the certified copy of the order in OP No.122/82, There was no restitution of conjugal rights between the parties in pursuance of the said order. Subsequently, there were exchange of notices between the parties. The wife also filed MC No. 15/85 for granting maintenance and that petition was allowed on 18-11-1985 and maintenance was granted at the rate of Rs.250.00 per month. On revision to this Court, this Court reduced the maintenance amount to Rs.200.00 per month. Subsequently, the husband filed OP No.380/89 on the file of II Additional Sub-Judge, Visakhapatnam for granting decree of divorce, on the ground that the respondent did not join him inspite of the orders in OP No.122/82. After contest that petition was allowed and decree of divorce was passed on 18-8-1993. Thereafter, on 12-6-94, the husband filed MP No.94/95 under Section 127(2) Cr. PC to cancel the order of maintenance granted in MC No. 15/85 for the reason that a decree of divorce has been granted between the parties and mat the wife had deliberately deserted the petitioner. The wife resisted that application by filing her counter to the effect that the petitioner himself deserted the respondent, that she had preferred an appeal against the decree of divorce passed in OP No.380/89, that she did not remarry and that she is unable to maintain herself. During the course of enquiry, the petitioner himself got examined as PW1 and got marked Exs.P1 to P6, and the wife-respondent herself got examined as RW1 and no documents were marked on her behalf. On a consideration of the oral and documentary evidence placed before him, the learned Judge, Family Court dismissed the petition. Aggrieved of that order, the husband has come up with this revision.

(3.) The learned Counsel for the petitioner vehemently contends that the respondent herein did not comply with the directions passed in OP No.122/82, that she did not join the petitioner inspite of the notice issued by him and therefore, the petitioner obtained the decree of divorce in OP No.380/89 and in view of the decree of divorce passed by a Civil Court, the order of maintenance granted in MC No.15/85 is liable to be cancelled. The learned Counsel for the respondent, on the other hand, submits that subsequent to the order for restitution of conjugal rights passed in OP No.122/82, the wife made attempts to join the petitioner, but the petitioner himself refused to take her back into his house, that no notice was served on the respondent and that as a divorcee also, she is entitled for maintenance and therefore, the maintenance order passed in MC No.15/85 is not liable to be cancelled.