IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY or DECEMBER 2om.V_j
PRESENT
THE HoN*Bx,E MR. JUSTICE K,L,VMANJUN'A'fH ~
AND
THE HONBLE MR. JUSTIC:-:'_ S.,n.sATYkaNMIgfir;INA :2
MISCELLANEOUS FIRST APPEAICTNO.1212'C.'II4C2'O()05s (MC)
C/w MISCELLANEOUS FIRST AP?EALNO;=1213 oi-12005 (MC)
BETWEEN :
Co1.K.Murugaiah (Reta;
Aged 61 Years,
S/0 P.Kanthapp3; Pii1_aiJ A A
C/C Ravi, -.
M.S.A11ied 1ndus,tri'e;s', "*1 ::~.. ..
11"' Cross, Maga.diA'Rr'>a§1,V
BANGALORE_-- 560 023';
T
Aged about 55'eaI'"S
= _w/o c'(>1.'K;MI:ru.'g;a:ah (Retd),
H 19', Main"-Road, 'D0:I1l1Ir,
560 071.
{By S1~i.T.RajaI{gn1; *Ad§;.)
- AA"{'BAy"SInt.Shobha I-Bhavikaiiti, Adv.)
*'_*_*M*M=¥'-$1ll=$$_M*
.. APPELLANT.
COMMON IN
BOTH CASES
.. RESPONDENT.
COMMON {N
BOTH CASES
I/av»:
ix’)
M.F.A.No.’1212/2005 is filed under Section 19(1) of the
Family Court Act, 1984, against. the Juclgmerit and Decree.–d_21te(,l
17.11.2004 passed in MC No.1055/2000 on the fi1e.oVf”-.t,he_ I
Additionai Principal Judge, Family Court, Bangaiore, a1]_o4wing””etiit2V.
Petitiori filed by the respondent herein under Section ~
Hindu Marriage Act, for restitution of Conjugal V ”
M.t«’.A.No.121_3/2005 is fiied underSection.:’.1l9{1)’ei’ofHt.,he’
Family Court Act, 1984, against the Juclg.§ne~11_t ar1d_-1)e:::.ree 00 daterid
17.11.2004 passed in MC No.11€?36;42000″v.on the’V_iiiev…ofH the
Additional Principal Jtzdge, Farniiy Conrt, Baiigalore, disrnissing
the Petition filed by the appeiiant herein ttnder Section 13(i]{ia)
and tibl of the Hindu Marriage :§ee};.ifig._g.decree of divorce.
These Appeals having beiennhearri for Judgment
this day, s.N.sATYANA1§AY£t_NA Jf.,.’prot’1ot_tne_e¢t’ the following:
_……………..,……………._…_~_._..
ieeeeeee
Theseiztwo by-the husband challenging the
common Jtidgrnent dated 17.11.2004 in
:t(i,c.No.iQ55,!2ooo it:i.c.1\to.116e/2000 on the file of
Bangalore. M.c.No.1o5s/2000
seelting restitution of conjugal rights is allowed
and M.C’;-No…_1’1i3,G’/2000 filed by husband under Section 13(1]{ia)
the Hindu Marriage Act, seeking decree of divorce is
r_,.{/.-if ,1
2. The essential facts leading to these two appeals are as
under; The appellant in both appeals is husband, the re,£3po’n_t_le.rit
is his wife. Both are Irfiricliis belonging to same t:oIr1rr_i–u_i’iity’;.lj” .
marriage was arranged by elders and celebrated cin”24;’_.§1:’E.97’é}~ at
Palayamkottai in Tamil Nadu in the pres’erice”oI”:’the. elt1le’rs”‘df.._bo:h8
family. At the time of marriage appellant was
Army. Immediately after the marriage, .respo’11clent jdiried her
husband in the matrimonial lR_e.s’p0IidentAlwas not co~
operating with Appellant and him and were
quarrelling on arose in 1976.
Respondent left the December 1976, started
residing with to inatrimonial house
only in the was in Delhi. In the year
1984 when was in Dehradun, respoaadent joined
eeimpletedll lthell same during April, 1985. After
eornpletiolnn in the month of May, 1985, both went to
l”~~–‘responde’nt’s pareiits house in Trivendrurn for holidays. After
~ .l’_jjh.olidays respoirident refused to join him in the matrimonial home
4’~._lwit[ho1,1t élfry valid reasons. She eoutinuetl to live with her parents
8 joined the appellant only in June, 1988 at Delhi, where
‘ ~.,
-‘av!
he was working at that time. ‘l’hereafter in July, 1989 again she
went to Bangalore, started staying with her younger sister,-~–___ The
appellant waited till Janiiary, 1991. Thereaifier issued
notice to respondent complaining that she has been.-Aécontuiiioiisiy ‘
staying away from the matrimonial house, wi’thou’tV,any yaliid it
reasons on more than one occasion, he ca«lle(l_’_’i1por1llher to _§«oivii-~
in the niatrirnonial home within days,”
3. The said notice tiuiy i.,«edp1i.ed.”by the respondent.
Around this time, theAappella..rit.:.was’posted.at’:.I:}@ga1ore, he was
aiso aliotted an ther_ea_fter”t-he respondent joined
her husbarldv in theniontii of January 1992. It
is the caseef the iew days thereafter, on
07.02.1992,thedbrotiier§–in¥1aw~’of his wife, Sri.Kad1reshan, who is
theV’a’ppell’a.nt, came to his quarters, abused him
without 13ro9foeati.o1i while returning took the respondent also
came back later. It is stated that on few more
Vdaoccasioras’ there was fight between the husband and wife, after
“‘«oou{3le Vloifweeks, again his wife left the matrimonial house on
2’i”$«,–{)E’i;§19Sl2 and did not return thereafter, which resuited in
appellant issuing another notice on 28.09.1992 which was duly
‘”1/**’i
3,
replied by the wife refusing to join him. In the meanwhile, the
respondent. took up a job a Teacher in Army School, Bangalore
and eohtinued to live with her sister.
4. It is the specific of the appellant that
is under the influence of her younger sister V1–1.;i’sl)a.r.7i(:l’,
hence she has no interest in joining the «;app’ellaht.,V
matrimonial house and the respondent is» staying pa.l.;gfjg \§vith.her’~..
children in the house of her sister niueh» againstthef-wisl,1es of her
husband. Further, the yotiriger ..respondent and her
husband is said to have no such she has
developed botlrchildren of the appellant and
they are hold1ng~bacl«:,_th._e’.res~pond*ent and her children with them
prevenfingthem oonle and the appellant.
_ t.l1e_v “Said. proceedings, notice was served on
,,,,___,;~espof1dent, she ~ent:ere(l appearance, filed counter stating that she
.,ilpi’_:«..has_,pnot desetjted her husband, she has not walked out of the
IIlELfiiIl10.ffl.al house voluntarily, the appellant himself has driven
‘ f out of the matrimonial house along with her children, as such
has taken shelter in the house of her younger sister at
WE
6
}3a11g”al()re. At no point. of time earlier also she had voluntarily left
the matrimonial house. A(:cor(:iir1g to her, the appellaxit being an
Army Officer was on regular transfer from one place to another and
as such residential accommoclati.on was not made available by the
Army immediately on such t;r.2u1sier and as such she was “fo:’cer,l”to
stay back with her parents whenever the appellant V’
from one place to another, such stay ot*th.e re’spohn(ie11tV”ir1:_’whe:j V
parents house was at the instance of the”iap1:iellantllhereiii
a voluntary decision of the resporideiié, It is _he;9(:ase..th»at at: L
any given point, she has not stayeC1___away»»froth the 1’natrirnoniaJ
house for more than is or 2″”years–, that she has
continuously house for four years
from 1976 “flo:r’«another two years in 1981 and
two Years l ll
” ease is not interested in getting divorced
from-.her inteml to continue to live with him as his
wife, she–,i_s e\xeh_hL.ow willing to join the Inatrimonial house. It is
L/4./i__,f
only her husband who has preveritetl her from going back to
rnatrinionial house. it is also denied by her that her brotheninwlaw
has nourished illvwiii against: her husband. in the said petition,
she filed Counter Claim under Section 23(a,) of the M
Act, seeking restitution of conjugal rights by 9 of -.
the said Act.
7. The petition which was,»i1iitially” ,:a1.)[.)e’;llaritj”‘e,
herein was in M.C.No.668/1992. SinCCCre_lltt.he sairi- filed
by the appellant within two fifoni of the respondent
staying separately from him, :bteehnie,al__l¥:lefect regarding
maintainability’;-V _ ‘–a;)1oeilar2.t’% filed a memo seeking
permission t:(}_’fil’e” asffjegifi-» withdrew the earlier petition
filed in M.C.No.V6-SS ‘Al-1′(2w§:ver, the counter claim filed by the
respondent was pursued, separately.
the husband filed another petition in
the file of the Family Court, Bangalore,
dec,-~reeg_ of divorce against the respondent, on the ground of
‘f_””e,rne~ity also desertion. pieaciings in the said petition was
t” niore or less same and the Statement of Objections which was filed
by the wife is similar to the one she has filed in her c0u11t’er_claim.
in M.C.Nc.668/ I992, the said cmmter claim is rer11.1..rx.1,’i;~e_i””e:dwas
M.C.No.Ii66/2000. The Court. below clubbed bcth_—-fhe’i1iéi’t1;et*:~:.,T’ .
based 0n the rival <:0nt'enti01'1s iii bothm the p'ef'fiti'0:f_ivs,7ira,1ne(i
c0mmor1 issues to be decided which are 11r_i(ie.:': "
i) Whether the V» -_:’1″0…\.3V})0r1A.cie0r__1tV
M.C.N0. 1 166/2000 d,eSerfe’L1. : I hef”:
husband intentierialiy vi’iii.ae,’»vi’treated
cruelly and wheihei’.i_f};.e- ‘entitled
to seek (iijifcyce 1.V.’:${ of the
ii) \N’hei;i–1.erf_ the respondent
for than two years
5.: the’ __?vI..C.No.1166/2000 to
see’}:,4_decre’e _df.’di.vid:~.§é Junder Section 13{1)(ia)
– -of the $1.: :;ci’uv”M$i:~né,ge Act’?
iiiir the respondent/wife who is the
‘V ;§’eu;;:c{:ie;%1..in M.C.N0.1O55/2000 is entitled to
Seelifcieicree for resiittuiorl of conjugal rights
H tifalfiihefi Section 9 0f the E-iindu Marriage Act’?
A “:1?” H What Order’?
Lei,
9
9. The Court’: below recorded common evidence in respect
of both the petitions and the said evidence was reeo~rc_}1’egiC’~».in
M.C.No.1166/2000. The appeflant, who is .
M.C.No.’l166/2000 examined himseif as “_foi.ir*
document.-s marked as Ziixsé”-1 t:o P4}. So.._far_”as–3the. res’pond:e.rit”eA
M.C.No.1}66/2000 is eonoerried, sf1e…exarninetl as
she did not produce any (i()(:ii;n”‘–~V”Judgment passed in the aforesaid two petitions, has
-. ..C’_j:.p.referred these two appeals.
0 M.F.A.No.1212/2005 is filed ehalleriging the Judgment
00 a_ri'(1»v-Diettrtze dated 17.11200-4 on the ground that it is neither
‘L1_:’x.-E
E
ll}
sustainable in law nor on facts for the reason that the learriecl
Judge has not assigned any reasons for granting relief of
restitution of conjugal rights. ‘lhe Trial Court has granted» the
relief only on the ground that. the petition filed by
seeking decree of divorce is rejected. ‘l’herei’70._re.-wiilioeit
appreciating the evidence, it has zu,itomat.ic”aiiy.ailllower1jzthe 1§<eti'tio':}
for restitution of conjugal rights and that A'
also not appreciated the facts that–lh'e_Vresfionoent/wife"tie:-jertecl"' V
the appellant for several years, "failed to "apApre'ciate the
respondent has not fulfilled ma;ri_ta;l'}Jol'igai:ion,V her continuous
stay away from the matrimonial 'I?itorne«..Vamoants»' to desertion and
depriving lainounts to crueity which is
not looked Learned J udge has not taken
into consid,eratiolri"ttie fact that attempts made by the husband
xwifellltlovlrriatrimonial house and also the attempt
onllttiel Wife to withdraw from the company of the
'husband is not considere(i.
ll. also urged by the appellant that the Court below
has’al’so :i;()t looked into the between
the respondent from the date of marriage, i.xe., till date of
filing petition wherein on resnonderit has
lived separately and away fromithe inspite of
that the Court conjugal rights to
protect the interesyt up already attained
majority the sake of the children
who are already “residing separately, the interest
of the huslsand iSl”uSal:v:”rif’i€’6fi\””. V
lylii’hllVNo.12i3/2005 is concerned, wherein
theAJdc}«gmentfantl in M.C.No.1 166/ 2000 is challenged, the
appellanthas’ Iirged the grounds which are more or less similar to
“”l-1li.tj1:I.§§’l”‘.1{hichliirged in MFA No.1212/2005. in addition he has
l”=lsta.ted”tha}t the Court below has failed to take into consideration
‘t1hf.:_r_e_f)<-raterzl desertion by the respondent with an intention to stay
§-':/ ii,/3
i
away from the matrimonial house. That he has also raised a
teehxlical objection that the Court below while ciismissirig the
petition in MC No.1 166/20()O on the ground that the p21rt;ie.s–,i1ave
not lived together for more than two years prior to filir1_g_o'ftiiie"Vsaid
petition, which according to him is incorrect. A(:eo__r(iir1g. to the V'
appellant, earlier petition in M.C.No.668:/ im992v_.ras fi;led"ifn_
1992 and at that time admiitecily the pa'i'ties_Vhave»'1;.,ot' l.iv*ed-;:a;part.u
for more than 2 years to filing the"'Vpetitio11.. the
appellant, subsequent filingof petitiortiii"-~M.C.No.'G68i)l1992 the
appellant and respondent their differences,
Respondent has notéeame 1:;-aeitb to 1~;:at;=:;noniai"' house, they have
not lived thevllltime of filing the petition
No.116e/2060,' the – a';"s'f§jel_lar.1_tlA"~ar1d the respondent had lived
separately _ for more the-.n l'two"'lyears. Therefore, the Judgment
;plas–sed Court loel'ow'Vholding that M.C.No.1l66/2000 is in
contiritriationof il'?1f';C:;1'Jo.668/ 1.992 and to hold that prior to filing of
they have not lived separately for more than 2
heneelllttie petition in M.C.N0.1166/2000 is required to be
'1."'«ri_is~e_t1isjsled..«or1 that very ground is incorrect. Therefore the finding
givei'1 hey the Court below that lVl.C.No.i 166/2()OO is continuation
of 1ViC.No.668/ 1992 is also incorrect. It is aise his case that the
Court below has not appreciated the pleadings and evidei1_:c'e_< 2:.,_r1(i
has not given proper finding while disposing of the _
filed by the appellant and respondent before the * _ it
13. After going through the firidirigs A’ in Qititignieiit-..,,3}1e1.
Decree of the Court below and the gijoshds ii;tt1e_Vap_peal”‘meii1o in’- V
both appeals, the following poirits i’or”eex:isi(Joeration in
these appeals:
i} Whether « grheritv and
Decifee b3t.:t;he….Coui~j~1; .]%)’eio{irVV– holding
that the::.reéspoinieiit’: ected the
eruevityvfl and has not
:desei”ted. is j proper’?
ii] V_ _Whether’ the (f0_tirt”ttbeiow was justified in
ciisinisstirig.the_.petition of the appellant]
seeking decree of divorce and
* the petition filed by the
« res;io_ntient/wife seeking the relief of
i*est”iét1tion of conjugal rights?
A What Order’?
3.4
Heard the counsel for ,Appellant. and Respondeiit ;’)eruse(.l the
grozmcis of appeal, ilrlcling of the court below in the light of the
pleadings, evidence anti rioeumerits on record. On appreeia”tio.o of
the same this Court answers point Nos.1 and
consideration, in the negative for the foilowing reasons; . V’ it
14. The fact that appellant and’Jres’p’o:iclent;’aAre1ai1us’lfi’ani;§.
and wife, their marriage took place on 1.31.974 the
of elders in the family, at the tin1–e:”of marriages was
working in Indian Army and he wasl’s’tatior1ea:1_ in North Iridia is not
in dispute. It is also not in Zjreutnediateiy after the
marriage respozldent w’e.n_t ‘joit1er.l..Vhirn. Thereafter, she got
conceived iii; 1975their-».first”lehiid; a son was born is also not in
dispute. Theu”appellant’.h’as_”_.’oVstated that thereafter for small
Vglifferenees responclent ‘left gxnatrimonial house in December 1976
notjoin. till January 1981. After she came back in
1981 delivered a female child in 1982. It is his
case that while “she was pregnant she left the house and she never
‘eail*n<:"ha_ek till January 1984. 'l'hou.gh she came back in January
j..gfss4fshe" stayed with him :11] May 1985 and from May 1985 to
1 §Iur.1e"1988 she was residing with her parents. From June 1988 to
3§…¢'J£___/E
ed own irffetrietfably.
E5
July 1990 she stayed with him. Again in 1990 she left the house
to come back only in January .1992. Front January 1.9942.pt.o.,_9May
1993 she was residing in matrimonial house.
15. in the month of May there p_figl’1t;«
appellant, respondent, her sister and;.__ l:5r_ot:her¥in,-law,.
resulted in appellant fil.ir1g_§ (:()r.r1pla,i:fitb at 9. £3.iap–pa’r__1al’1alli”’ l5olice”
Station, wherein the police’ ,_have..t”fc:eorde’d_.’ stateinent of both
appellant and respondent. January 1991
appellant had issueda his wife to come
and join him, she In January 1992
she came there was light between
appellant oiione sister and brothenin-law on
other side res1llti,r1gv.in’ between the parties breaking
‘appel_1~ant has adduced evidence in support of his
ha’ ”
n°’pieading.s, wl1erein he has re–iterated the entire pleadings in
” ifsaipport of xnisi’ Case. To substantiate same he has produced copy of
A ‘[1(7ll;ll()(%’iS§.t’l€3(,l in 1991 as Ex.I:’],. The complaint. that was lodged by
before Biappanahalli police on 8.2.1992. is at Ex.P3. l§x.l”4 is
56
the second notice issueczl by hini calling upon his wife to come and
join, for which the reply given by resporiclent is l§x.P5. ‘lTl1e..t§ta;;iy’._g()i”
the statement given by respondent to Bia.ppanahal_ifpoliee_’:«:uf1
26.6.1992 is Ex.P6. The contents of themsaicl ticjeariienteielearly’
support his case.
17. The aforesaid docunients’=..glisclose that i’rn1nediately*. 9′
after the fight between appellant aI.1tl..re;s’pot1(lent. l\:zflay_€l992 and
after issue of legal notice to and getting the
reply vide Ex.P5, apraeilant rleeree of divorce
in the year 1992. for filing said
petition is __1fefu’s’a.1:::~– tot? join the appellant in
matrimonial} home seen from her reply dated
16.9.1992, which is es; _r§:;;p.5}”‘e-newever, when the appellant filed
the seeking dissoI11:’a:.ion of marriage between himself and
resp.ond,ent._fi Sgnelfiles 3. counter claim under Section 23–.A of the
Hi11de1_Ae’Iv.w”seel:ir1g restitutior1 of conjugal rights. The
earlier ;5et.iti:;)ri by the husband / appellant in MC.No.668/ 1992
taken baek by him for the reason that the same was not filed
“tw’o years from the (late of alleged desertion from his wife.
in’ -the rneanwhiie, the counter claim of the respondent was re-
numbered as M.C.No.1 O55 / 2000 and the same was treated as a
petition under Section E) for restitution of eongugal rights.
18. The exnoenee on record clearly diseiose tlfialt tron: V’
date of rnarrieige between the parties,’;'”A\”vi’;i(:1″1 took’-vp1aeeflEor’i..
24.11.1974 en 1992 they have hardly residrerl~–to:gether.for _
to 6 years. Though the respondent ‘h:a.s».e(ler1ied__ st.ayi*gg*.§’éf>arately ” 8
between 1974 and 1978 andzmibsequeriitiigrl111 198a0″s~~.;.1e.,.«,’§ between
198 1 to 1984 and 1985 to for the reason of
non availability of on record to
show either in or show that she
continued 1974 to 1979 and on
subsequeritrlates she stayed away from the
matrimonial hoxlrlne-lat instarlee of appellant, who has refused to
Vteeke her~’1:iael_{} On éoing___t_hrougl1 the reply sent by her vide Ex.P5
to’.f;he;V1’egal notieelt is clearly seen that after 18 years of marriage
Vfor the1.’1rs’t t’irne*L–res.f$onder1t has raised an allegation of dernand for
dowry. .4Ev.en.’Vt1’ioi1gl1 has levelled said allegation against her
Vhzlsbarid, she has not substantiated the same either in her
.8 eV’i–der1ee’t)r by exaniining any ira(.1epenc1er’it witnesses, in support of
19. Admittedly, the respondent has stayed with her sister
and brother-indaw for a long time after she left her h11St3aii1d,l.”ii}
one place of her evidence she says that she had been ~
house of her brother~in~law at the iristanceof her it l1€_1:shan(l., in
another place in her evidence sh.e state that was driven :f)’1.l’C’é,)f
matrimonial house, hence she wasVgi_\fe.:f1 shelter by h_er~.brothe3r–in- _ V >
law. So also in the statement n1ade_:by__lier be.fo¢”PHv..t1Liv§Arfipo1ice on
26.6.1992 she admits that in the house of
her sister and her maflirhonial COIIiII10tl0I1 she
left the matrimonial. most of the things
that are belongin’gVtoV’l3e’rV: pleading and evidence, it is
seen prior house her son was already
in the house other sister: ° the fight between her husband
herselfvstie left thetnatrimonial house with her belongings to
stay her,s.i:slter__ and brother–ih–1a,w. Though she stated that
V therehiass threat to her life from the date of marriage
till 199i’ wl*ien’she was staying with appellant off and off there is
‘eednoit, even alsingle letter, correspondence by respondent with her
-pl.arents’Aand sister. To substantiate the same, similarly there are
“–«no'”coniplaints either to the police or to anybody to any of the
“”1
I9
elders in the family in this liiehali”. The responclent has not
atldneecl evidence of independent witriesses either of her or
brother~iI1~law or some other welbwisher who kn.oI%__I ahVojg’,1i;_T
appellant and respondent. to speak about.Wthe al1e’gecl—- :ill:tre21t.n1e.nt.” *
meted out to her by her lriusband.
20. The evidence on record*:(_lisclose’that Vthevilapipellant liasfl.
taken steps calling upon his wife rnatrirnonial
home through legal notice in in 1992. The
reply sent by respondent, that she had
no interest in of time. The said
reply and the u:§1a<:1"e"~':o'f;33f"1';er Vlioefore police which is at
Ex.P6 establishes :rea:s'onabIe doubt that respondent left
matrimonial house under '£.l1e.'i"r_.':lluence of her sister and brother
in glaw. leaving hoagse in the month of May 1992 she took
awagf hverbailiher belongings and her children after lodging a
coinplaintpeiv&ithj_~poli(':e against her husband and also giving a
statement to*–.thev police in respect of the compliant that was given
"'oy"hin: her brot'her~in~1aw.
Mi
’20
21. Per contra, the complaint given by appellant against the
brother-in-law of respondent he has not made any
frivolous aliegation against the respondent, he has aiscdnot: ~
suspect her character or foist false ci1aijges_ aga_%nst”‘her. his ‘A ”
grievance is that his wife’s sister and b.f§)ther>i:’1~law are ti3fingiA::to
control the life of respondent and her’ «c_hildrer1,’ ‘oeirigj ‘iri.fi:.1.er1ceci by.’ V 9
their advise his wife is not staying respondent
denied the same, she hasi’-«.._n’Jt’ .ind.ependent witness
through her sister orJorothereinslavvV-.to. same. On the
contrary she waits for divorce and
thereafter, by tiled an application for
restitution reading of the evidence also
clearly discloses time when the petition was
pending h_usban.rl_was readv and willing to take the respondent
.hoine aeven several atterngits were made by
apnellan-tifbr::s*ettlei;aerit she has not shown inclination to settle the
A’f’«herefore;4j’;tne conduct of respondent clearly shows that the
~ «3.j’j;eon’riter ciairrr that was raised by her in MC.No.668/1992 is
ljlgli a counter blast to the petition filed by her husband
seeking decree of divorce.
22. The Iriaterial on record clearly (‘iis(:losee that the eoriduet
of respondent. in depriving her husband her company for more
thail 12 years out of .18 years of their rnarrieri life on t4lI(?V’d_”c:it~’,V3_ of
filing of the petition for divorce in 1992 and thereaftergiurefuleing _
attempts of settlement on one hand and fightingt}-re Afileo’«V.
by her husband for divorce with a counter g:lairr1 for .restitu’ti_on,.oi”
conjugal rights, amounts to crueIty,__ Wh’en”tl1e
stayed away for such a long time any reason denying
her company to her hiishrhiéi, a1_i(i.de–i1ying right for
conjugal right, clearly 1r1clioate’sV’ respondent in
deliberately staying” arhotrrité to and also cruelty.
The eviderroe rlieneloses that she has been ably
supported 15¢; sist_er:.d:.’ar1’_ti–._gb’r<other–in–law through out. The
respondent/wife the appellant through out and her
*apV"p.ellantl also welfare of her children. The Court
below has" "appifeciate2('l the entire oral and documentary
'"*~'evidenoe__availaloie, on record, it has e.rror1eously proceeded on the
-<.l./'.jAj}:;re1nise thatg__ti1ere is desertion on the part of appellant believing
of respomlent/wife that the appellant. has sent her
i'«~.,»~-/1;
out of the matrirnonial house, as such. she has takeri shelter in the
house of her sister and brot:her–in–law.
23. The court below has failed to appreciate
exchanged between the parties, the contents ‘
complaint and the statement filed by tine »parties.’th.e police by
station and also the pleadings in the Ilieytitiorr
beyond all reasonable doubt t.l1atll.ré:spon(lent
deliberately’ stayed away from__ the yrnatrirnomal housevywithrout there
being any valid reason. On tof} Tot’-that:vsheyis”‘also contesting the
petition by filing counter claim-for conjugal rights
when she herself. tovgo to matrirnoriial house by
sending reply’ to the E§x.P5.
24.’;”1’h.erefore,,A _i’r’aV” the light of the above observation, this
Court is of the opinion that there is error on the part of the court
belowyirr apprergiatiion” of the pl.eacl1ngs and evidence available as
record. ‘*««’.I’he__refore it has come to a wrong conclusion that the
it 1appellant/respontlent has not made out a case for grant of decree
for and on the contrary the respondent was always ready
to a1’1d_,V_willir1g to join her husband and continue to discharge her
Q4»/5/\-i
{J
1;.)
marital obligation to the appellant and thereby wrongly dismissed
husbands petition. for divorce znid by allowing countt-%r (2§£3.iIVli_”fi1v_’V;3(i
by wife passed the order of restitution of conjugal rightsf’ « ._ »
25. For the foregoing reasons, this” Co.ur;. al_.l0_\}v-v’.b0Vt11.:’1hx€–.
appeals filed by the appellarity allsiyifxg his’
MC.No.1166/2000 for ciecree oi*’–v..;(:1’i=.rrce:” velrliii ‘co§1séq’uéi1t1y, ” V
dismissing the petition of VV”-rtgsporicicrmt./Wife in
MC.N0.1055/ 2000 for restit.1iiib;1’ without any
order as to costs.