J V LAKSHMANA RAO Vs. J BHARATAMMA

JUDGEMENT

(1.) This is an appeal filed by the husband against the dismissal of O.P. No. 1399/83 on the file of the Subordinate Judge, Mahabubnagar. The husband who is a dumb person from birth and who comes from a rich Jagirdar family was married to a girl coming from a pool family and the marriage took place on 27-1-72 at Tirupathi. The marriage was consummated at Hyderabad. A female child was horn out of this marriage on 15-12-72. After the birth of the child problems started.

(2.) In this Original Petition and the appeal it is the contention of the husband that though a decree for restitution of conjugal rights was granted by the court in O.P. No. 27/75 on 21-7-79, there is no resumption of cohabitation of parties for more than one year and hence under Section 13 (1-A), the petitioner-husband is entitled to a decree for divorce. It is also contended that the marriage is irretrievably broken down and hence the court should not be reluctant to grant a decree of divorce. Sri Y. Sivarama Sastry appearing for the husband-appellant raised a last argument in the following terms. In the trial court during the reconciliation proceedings the husband apprehended danger to his life. In this background a decree of divorce must be granted. On behalf of the respondent Sri T. Bali Reddy contends that this application filed purely on the basis of Section 13 (1-A) cannot be granted under any circumstances because after the decree for restitution of conjugal rights, there was resumption of cohabitation. In three different spells the parties lived together and enjoyed conjugal society and marital relations. Under any circumstances the husband who is not willing to comply with the decree for restitution of conjugal rights obtained by the wife cannot take advantage of his own wrong and ask for a divorce under Section 13 (1-A). Section 23 still controls Section 13 even after the Amendment Act. Mr. Balireddy contends that if we examine the history of events we find very peculiar facts. Everything was alright till the female child was born. But after the female child was born, the mother and the brother-in-law of the husband developed a feeling that the entire estate and the property of the husband would go to these people and hence they were anxious to get rid of the wife and the child. The main culprits in this case are the mother of the husband and Jagadeeswara Reddy the brother-in-law of the husband. The wife was driven out of the house on 20-11-74. Then she had to file O.P. No. 27/75 for restitution of conjugal rights. It was decreed on 21-7-79. Then C.M.A. No. 554/86 was filed by the husband. But ultimately the husband withdraw the C.M.A. and took the wife to the house. The C.M.A. was withdrawn on 19-8-82. Having consented to take the wife home and live with her and having lived with her now the unscrupulous husband and his advisers have come forward with the plea that the wife's failure to comply with the decree for restitution of conjugal rights amounts to desertion. The conduct of the husband and his advisers is further clear from the fact that after the C.M.A. was withdrawn on 19-8-82 within a few months O P. 117/83 was filed in the court at Hyderabad for granting a decree of divorce on the self-same ground of Sec. 13 (1-A). When that was dismissed on the ground of jurisdiction and when E.P. 716/83 was filed by the wife for execution of the decree for restitution of conjugal rights the present Original Petition was filed in Mahaboobnagar court on 24-10-83. In fact even in the Mahaboobnagar court the Original Petition was presented to the court before the period of one year expired from 19-8-82 on which date the C.M.A. 554/80 was dismissed as withdrawn. Under no circumstances can the present appellant-petitioner be granted a decree for divorce.

(3.) The points for consideration in this case are.