C JAYARAM MUDALIAR Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) This appeal arises out of a suit filed by a husband against his wife for the restitution of conjugal rights. The parties are Hindus and Mudaliars. The undisputed facts are these. The marriage took place in June, 1916, when defendant was nine years old. It was brought about largely by an elderly relative of both parties named Ponnambala, who also executed a will making provisions in favour of both parties to take effect on the death of his widow. About 1921 when Ponnambala was dead and defendant had not yet attained, puberty, plaintiff married a second wife, also then an immature girl. She was his sister's daughter. She attained her puberty within a few months, and ever since has lived with the plaintiff. Defendant attained puberty in 1922 or 1923, but continued to live with her parents. In 1926 occurred the only correspondence between the parties or their families until shortly before the suit. Plaintiff wrote to both defendant and defendant's father complaining that defendant had not been sent to him, and calling upon her father to bring her on one or two auspicious days, threatening legal proceedings if they refused. Defendant's fattier replied expressing his anxiety that defendant's married life with plaintiff should begin, but pointing out that according to custom it was plaintiff's duty to come to him and have the nuptial ceremony performed in his house. Nothing further was communicated by plaintiff. In 1927 defendant's father died. In May, 1936, Ponnambala's widow died, and plaintiff took possession of certain property under plaintiff's will. On May 22, a lawyer's notice was sent to him on behalf of defendant calling upon him to vacate the property, which defendant claimed was hers under the terms of the will. Within four days of the receipt of this notice plaintiff replied by a lawyer's notice demanding that defendant should come and live with him, and he followed up this notice in July by filing the present suit.

(2.) These are the undisputed facts. The case, as put forward by plaintiff, was that his second marriage was undertaken by him owing to the delay in defendant's attainment of puberty. Defendant's father was so angered by this conduct that he called a caste meeting which resolved that the members of the caste should henceforward dissociate themselves from plaintiff because he had married his sister's daughter. Defendant's family failed in their duty to inform him of defendant's puberty and to bring defendant to his house. It was impossible for him, even if it had been otherwise customary, to go to defendant's house owing to his bitter resentment at defendant's father's actions. Not only in 1926 but on other subsequent occasions plaintiff attempted through various messengers to persuade defendant's people to send her, but they refused.

(3.) The learned City Civil Judge dismissed the suit. He held that plaintiff's original intention was to marry only his second wife. He was persuaded by Ponnambala to marry defendant, but after Ponnambala died he had no intention whatever of treating her as his wife. Plaintiff's letters in 1926 were cold and formal, and were written by him in the certain knowledge that his proposals would be rejected. The other alleged attempts to secure the company of defendant have not been proved and did not take place. On the other hand plaintiff deliberately rejected overtures made in about 1930 by defendant's family through D.W. 2 that he should arrange to fetch her. The suit has been filed, not because plaintiff really wanted the society of his wife, but in order to overcome her opposition to the claims which he put forward under Ponnambala's will. The grafting of a decree in a suit of this kind is an equitable relief, and as plaintiff has neglected his wife for this long period, and has brought his suit for the sole purpose just mentioned he is not entitled to such relief.