divorce = restitution of conjugal rights

posted 16 Mar 2011 02:22 by murali mohan Mandagaddi


 No doubt, the Court below did not appreciate the oral and documentary evidence available on record while dismissing the OPs filed by both the husband and wife.  We are of the opinion that there is no justification in dismissing the OP filed by the wife seeking restitution of conjugal rights.  The Court below rightly held that the wife did not desert the husband voluntarily.    It is the case of the wife that she is always ready and willing to join the husband. There is strong and prima facie reasons for her living separately from her husband.  The evidence available on record coupled with Ex.B1 letter addressed by the husband discloses that the husband had strong desire to have a male child and accordingly he got fulfilled his desire through the said Saradamba.  The evidence of RW 1 is corroborated with the evidence of her mother RW 2 and Ex.B1 letter.  Therefore, we are of the opinion that the wife never deserted the husband without any reasonable cause and without consent or against the wish of the husband.  On the other hand, the husband himself created a situation and circumstances for leaving the wife from his company and therefore, it cannot be said that the wife herself deserted the husband.





IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH 
AT HYDERABAD


WEDNESDAY, THE THIRTY FIRST DAY OF MARCH
TWO THOUSAND AND TEN

 

PRESENT

THE HON'BLE MR JUSTICE V.ESWARAIAH


THE HON'BLE MR JUSTICE B.N.RAO NALLA

 

C.M.A.No.3730 of 2002

&

C.M.A.No.101 of 2010

 

C.M.A.No.3730 of 2002

 

Between:

Konda Ramu

..... PETITIONER/APPELLANT

AND

Konda Rajyalakshmi

.....RESPONDENT

C.M.A.No.101 of 2010

Between:

Kondu Rajyalakshmi

..... PETITIONER/APPELLANT

AND

Kondu Ramu and another

.....RESPONDENTS

 

The Court made the following:

 


THE HON'BLE SRI JUSTICE V.ESWARAIAH


THE HON'BLE SRI JUSTICE B.N.RAO NALLA

 

C.M.A.No.3730 of 2002

&

C.M.A.No.101 of 2010

 

COMMON ORDER: (per Hon’ble Sri Justice V.Eswaraiah)

 

          The appellant in CMA.3730/2002 is the husband of the respondent who filed the O.P.56/2000 on the file of the Additional Senior Civil Judge, Ongole under Sec.13(1) (1b) of Hindu Marriage Act seeking divorce on the ground of desertion.  The said O.P. was dismissed by order dated 23.04.2002, against which the husband filed this appeal.

          2.  The appellant in CMA.101/2010 is the wife of the 1st respondent who filed the O.P.84/2000 on the file of the Additional Senior Civil Judge, Ongole under Sec.9 of Hindu Marriage Act seeking restitution of conjugal rights.  The said O.P. was dismissed by order dated 23.04.2002, against which the wife filed this appeal. 

          3. The 2nd respondent in CMA.101/2010 is described as kept mistress of 1st respondent/husband.  For the sake of convenience, the parties herein are referred to as “husband” and “wife”.

          4.  The husband filed the OP.56/2000 alleging that his marriage took place with the wife in May 1978 according to Hindu tradition and custom and immediately after the marriage, they joined together and led happy marital life and out of their wedlock, they have blessed with three female children.  The husband is a Government employee and the wife is also working as Anganwadi teacher since 1986. The husband has been transferred to Kota, Venkatagiri and Tarlubadu and at the time of filing of the said OP he was working in Prakasam District.  It is the case of the husband that due to frequent transfers, his wife started disliking against him and refused to live along with him from 1990 onwards.  Despite his repeated requests, the wife did not join the husband to lead happy marital life and hence he filed the said OP seeking divorce on the ground of desertion.

          5.  The wife filed counter admitting the marriage and blessing of three female children, by name (1) Rani Ambaji, aged 22 years, (2) Santhi Priyadarshini, aged 19 years and (3) Venkata Ratnam, aged 17 years.  She stated that the husband took voluntary retirement from Indian Defence Service and subsequently got employment in I.C.D.S at Rapur of Nellore District, and later he was transferred to Kota from Rapur, and from Kota to Venkatagiri.  It is stated that while the husband was working at Kota, he developed friendship with Saradamba, who was working in the same department, and subsequently the husband started living with her at Gudur.  It is stated that the wife questioned the husband about his illegal intimacy with the said Saradamba, and thereafter the husband used to harass the wife and threatened her with dire consequences. Subsequently the husband shifted the family from Rapur to Venkatagiri in 1994 and necked out the wife from the house.  As there is no other alternative, the wife along with her three children came to her parents’ house at Ongole.  The husband along with Saradamba put up family at Gudur in 1999 and subsequently both the husaband and Saradamba were transferred to Tarlupadu of Prakasam District, and the husband got a male child through the said Saradamba.  Thus, the husband wantonly deserted the wife and the children and also used to threaten the wife to legalize his marital life with Saradamba.  The wife is residing in Bojjanapalli of Rapur Mandal and working as Anganwadi worker with a  meager remuneration of Rs.550/- per month.  She got educated her three female children with the aid and assistance of their maternal grandmother. Since 1993 the husband neglected the wife and the three children and left them to their fate without providing any maintenance.  It is stated that to legalize the illegal relationship of the husband with Saradamba, the husband filed the OP for divorce without any proper reasons.  It is stated that the wife herself made attempts through the elders and relatives to join the husband and to change the attitude of the husband, but her efforts made futile.  It is stated that though the husband is leading immoral life with Saradamba, the wife is ready and willing to join the husband at any time at any place he likes.  It is stated that after filing the divorce OP by the husband, the wife filed O.P.84/2000 on the file of the same Additional Senior Civil Judge, Ongole under Sec.9 of Hindu Marriage Act seeking restitution of conjugal rights, expressing her intention to join the husband and lead happy marital life.  It is stated that in fact, the husband addressed Ex.B1 letter dated 30.10.1993 expressing his regretfulness for his torture and negligence made against the wife and the children, and stated that in order to protect his progeny (vamsankuram) he committed the said mistake and it is not possible to set right his mistakes at present.  It is stated that Ex.B1 letter would disclose that the husband was leading immoral life with Saradamba, and therefore, with a mala fide intention to cover up his latches and to give divorce to the wife, the husband filed the divorce OP.

          6.  In the said divorce OP, the husband himself was examined as PW 1 and in the OP filed by the wife he was examined as RW 1.  He deposed that he is working as Senior Assistant in I.C.D.S.Project Tarlupadu Mandal near Markapur, and he was transferred to Kota, Nellore District.  When he was transferred to Kota in 1990 his wife joined him though she was started working as an Anganwadi Teacher at Rapur.  In 1993 he was transferred to Venkatagiri and in 1996 he was again transferred to Tarlupadu.  It is stated that the wife did not join him at Tarlupadu and Venkatagiri.  He sent his brother PW 2 as mediator, but his wife refused to join him.  He stated that he is meeting the expenses of maintenance and education of his children.  As the wife refused to join him, he filed the OP seeking divorce.  In the cross examination, he admitted that his daughters are aged about 23, 21 and 19 years respectively and none of them got married by then.  He further admitted that he wrote Ex.B1 letter and there is one lady by name Saradamba working in his office.  But he denied his relationship with the said Saradamba and also denied of having a male child through Saradmba.  He also denied the suggestion that himself and Saradamba were living together along with their son Venkata Bhargava Tirumala Rayudu.  He admitted that the wife is the daughter of his sister.  He stated that he is not prepared to take back the wife.  He denied the suggestion that as he had no male issues through the wife, he developed intimacy with Saradamba.

          7.  The brother of the husband was examined as PW 2 in divorce OP and he stated that when he tried to mediate, the wife did not accept his mediation and refused to join the husband.  In the cross examination, he admitted that when the husband was working at Rapur, the wife joined as Anganwadi teacher at the instance of the husband alone.  He stated that he does not know whether the husband himself wanted to keep the wife away from him, as he is having illicit intimacy with one Saradamba.  When the court questioned PW 2 as to whether husband along with Saradamaba have attended the marriage of his son Venkata Sudhakar, he replied that he cannot say whether any lady by name Saradamba attended the marriage of his son along with PW 1/husband.  He stated that the wife may get Rs.400/- or Rs.500/- per month as Anganwadi Teacher.  He admitted that the husband has got garden land at Rapur where the wife is working and he does not know whether the wife is looking after the said land or not.

          8.  The wife herself was examined as RW 1 in the divorce OP and also was examined as PW 1 in her OP filed for restitution of conjugal rights.  She stated that her husband developed illicit intimacy with one Saradamba who is his colleague when he was working at Kota and he insisted her to accept his relationship with Saradamba for which she refused.  She further stated that her husband has also got one son through the said Saradamba.  She further stated that her husband was given five acres of land as he worked in Defence Service and there is a mango tope and she was looking after the said property which is situated at Bojjanapalli of Rapur taluq.  She is ready and willing to join the husband if the husband is willing to disconnect his relationship with Saradamba. The husband wrote Ex.B1 letter stating that he was very much desire of having a son as he had only daughters through her.  She further stated that the husband used to insist her daughters that they should call the son born through Saradamba as their brother, otherwise he will not perform their marriages.  The husband himself neglected her as she did not accept Saradamba as his wife. She is living at Bojjanapalli along with her daughters by looking after the land as well as her job as Anganwadi Teacher.  Nothing was elicited from her cross examination to disbelieve her version what she stated in her chief examination.

          9.  RW 2 is the sister of the husband and mother of the wife.  She also stated that the husband developed intimacy with one Saradamba and neglected her daughter, the wife, and in fact, the husband wrote Ex.B1 letter and then she along with the brother and children went to Rapur.  The husband used to beat the wife and insisted her to accept Saradamba as his wife.  Then the wife attempted to commit suicide by pouring kerosene on her person, but the elders pacified her and threatened the husband to give a police complaint if he continues to harass the wife.  It is stated that she stopped to interfere with the family affairs of the wife at the request of RW1/wife.  It is stated that the husband himself deserted the wife.  It is stated that her daughter alone was looked after the lands of the husband and her daughter is always ready and willing to join the company of the /husband.

          10.  RW 3 is the cousin of the husband.  He stated that himself and others went to the husband to convince him and there they found a lady and a boy living with him.  They requested the husband to join the company of the wife and lead happy marital life, but he did not accept the same.  On the other hand, the husband stated before them that he is prepared to accept RW1/wife if she comes and executes a bond paper before an advocate.  In the cross examination he admitted that the said lady is the kept mistress of the husband and the husband introduced her on previous occasion and the husband is having illicit intimacy with the said lady.  He denied the suggestion that he is speaking false because he is closely related to the wife.

          11.  RW 4 who is relative of both the petitioner and respondent stated that when he went along with RW 3 to the house of the husband, he found a lady in the house living with the husband.

          12.  RW 5 is the eldest daughter of the petitioner and respondent.  She stated that her father i.e. the husband is living separately along with a lady by name Saradamba and he demanded her mother/the wife and her sisters to accept the said lady Saradamba as his wife and the boy as his son, but they declined to accept the demand of her father i.e. the husband.

          13.  It is not in dispute that Ex.B1 dated 30.10.1993 was written by the husband to the wife, and in a philosophical manner he addressed the said letter indicating his sufferance and regretfulness for his acts committed against the wife and the children.  He stated in the said letter that in order to safeguard the progeny (vamsankuram), he developed the relationship with Saradamba and he is ready to take back the wife.

          14.  On the aforesaid evidence, the question that arises for consideration is whether the wife has deserted the husband without any reason?

          15.  No doubt, the Court below did not appreciate the oral and documentary evidence available on record while dismissing the OPs filed by both the husband and wife.  We are of the opinion that there is no justification in dismissing the OP filed by the wife seeking restitution of conjugal rights.  The Court below rightly held that the wife did not desert the husband voluntarily.    It is the case of the wife that she is always ready and willing to join the husband. There is strong and prima facie reasons for her living separately from her husband.  The evidence available on record coupled with Ex.B1 letter addressed by the husband discloses that the husband had strong desire to have a male child and accordingly he got fulfilled his desire through the said Saradamba.  The evidence of RW 1 is corroborated with the evidence of her mother RW 2 and Ex.B1 letter.  Therefore, we are of the opinion that the wife never deserted the husband without any reasonable cause and without consent or against the wish of the husband.  On the other hand, the husband himself created a situation and circumstances for leaving the wife from his company and therefore, it cannot be said that the wife herself deserted the husband.

          16.  In view of the above observations, we are not inclined to interfere with the impugned order of the Court below in dismissing the OP.56/2000 filed by husband seeking divorce.  At the same time, we are inclined to interfere with the order of the Court below in dismissing the O.P.84/2000 filed by the wife seeking restitution of conjugal rights.

          17.  Accordingly, the CMA.3730/2002 filed by the husband is dismissed and CMA.101/2010 filed by the wife is allowed.  No order as to costs.

 

___________________

V.ESWARAIAH,J

 

 

_____________________

B.N.RAO NALLA,J

 

Dated: 31.03.2010

Dsr

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