KAMINI Vs. BALAJI

JUDGEMENT

(1.) Wife has challenged the decree for judicial separation under S.10 (1)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') in this appeal under S.28 thereof.

(2.) Case of the plaintiff respondent, the husband is that the marriage was consummated on 15-7-1967 and the parties continued to stay together in their home at Jeypore. However, the appellant was always refusing co-habitation with him on the ground of her ill-health. Plaintiff got her treated by Dr. (Miss) Santamma (not examined, since dead) who detected that the defendant had conception by then. The fact was intimated to the parents of the appellant and the medical care continued. On 2-12-1967, she gave birth to a full grown child inside the latrine who expired immediately. On being accosted, she made out a story that a lizard fell on her inside the latrine, as a result of which, she discharged a lump. She claimed that the conception was through the plaintiff. The information was sent to her father, who came to Jeypore on 5-12-1967 with his father-in-law and took the appellant to Nowrangpur without the knowledge and consent of the plaintiff and his father. After coming back when the plaintiff knew about it, he wrote two letters without any reply. He also went several times to call her, but the parents of the appellant did not send her back on the plea of unwillingness of the appellant to join her husband. On this short ground the application was filed for judicial separation on 22-2 1972 though the same has been verified by the plaintiff on 6-9-1971.

(3.) Case of the wife-defendant is that her stepmother-in-law had a suckling child for which with permission of the plaintiff and his father, she left their marital home at Jeypore for better treatment at Nowrangpur where she was admitted to Germal Mission Hospital and was treated for a week there. The allegation of illegitimate conception was denied. She asserted that the plaintiff visited her at Nowrangpur on one occasion when he was requested by her father and grandfather to take her back but the plaintiff avoided, telling that he would find an auspicious day to take her back. Thereafter, the approaches of the father of the defendant personally and through others became ineffective on the plea that the plaintiff was no longer willing to take her back. She alleged that the plaintiff was guilty of desertion by his conduct in not taking her back and was negotiating for his marriage elsewhere.