(Judgment of the Court was delivered by Prabha Sridevan, J.
These two appeals are filed by the husband against the dismissal of his petition for divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955 in FCOP.No.203/2003 and against the decree for restitution of conjugal rights granted in favour of the wife passed in F.C.O.P.No.47 of 2000.
2. The parties were married in accordance with the Hindu Sastric Rites and caste and community customs on 30.11.1998 in Salem. They started their life at Kadathur. The wife was employed as a Clerk at the Primary Agricultural Co-operative Bank Ltd., at Valasayur. For three months, the wife was going to Valasayur from Kadathur to attend to her official duties. The distance between Valasayur and Kadathur was 60 kms. She used to hand over her salary to the husband as soon as she received it. She became pregnant and travelling daily 60 kms in the early months of pregnancy was found difficult and the Doctor advised her not to travel such a long distance every day. So, both of them decided to take a house for rental at Valasayur. The husband informed her that he had no income and he is not a graduate. They paid a sum of Rs.8,000/- towards advance for a house at Valasayur for a monthly rent of Rs.450/-. The said sum was paid by the wife. They started living in Valasayur from 14.3.1999. According to the wife, the husband made a demand for dowry of Rs.50,000/- to start an independent business. The husband also had gone to the wife's office and told the bank President that she should resign her job. After the wife convinced him, he obliged her to continue the said job. Thereafter, he returned to Valasayur and both were living together. On 12.6.1999, the husband informed that he is going to Coimbatore due to some personal work. At that time, she was 7 months pregnant. Thereafter, inspite of repeated letters, he did not return. The child also died because of the mental stress caused to the wife on account of his desertion. In these circumstances, she filed the petition for restitution of conjugal rights.
3. The husband in his counter denied all the allegations. According to him, he was treated very badly by his in-laws at Valasayur and his wife had also treated him badly because she was more educated than he was. According to him, he is entitled to divorce on the ground of desertion and cruelty.
4. The learned counsel for the petitioner referred to the evidence given and submitted that the respondent did not discharge her duty as he did not allow him to exercise his conjugal rights.
5. On the other hand, the learned counsel for the respondent submitted that it was only the husband who ill-treated the wife and he had even gone to her place of her work and created a scene and demanded that she should resign her job. Even thereafter, they had been living together in Valasayur. It is submitted that the wife might have chosen her parents' house in Valasayur, but only because it was time for delivery and she did not vacate the independent house at Valasayur for several months and she lived in the home on the hope that he would return to the matrimonial home. According to the learned counsel for the respondent, she has not done any cruelty and it was the husband who left her without any reason leaving her in the street. According to him, even now the wife is living with the husband.
6. The learned counsel for the petitioner has relied on DURGA PRASANNA TRIPATHY VS. ARUNDHATI TRIPATHY (2005 (4) CTC 287), wherein exercising its power under
Article 142 of the Constitution of India, the Hon'ble Supreme Court directed that the marriage between the parties would stand dissolved on the ground that the marriage had irretrievably broken down after a period of 14 months in separation. We do not think that we can follow that judgment in this particular case.
7. We find that the Family Court had examined the evidence very carefully and come to the conclusion that the husband had not proved his case of cruelty. The fact as to their movement from Kadathur to Valasayur and the distance between Kadathur and Valasayur which is 60 kms are admitted. The wife had become pregnant and medically as unfit to travel such a long distance and the husband had admitted that the road was badly maintained and her father had decided to fix the house at Valasayur, so that she need not travel long distance to attend her office. Therefore, the shifting to Valasayur was only because the wife had become pregnant and was medically advised not to travel 60 kms every day. Though in the pleadings, the husband had said that she did not behave properly, absolutely no incidents are given as to her acts of cruelty or acts of misconduct. The evidence of the wife that every month she handed over the salary to her husband also remains unrebutted. Therefore, his case that because she was more educated, she treated him badly, is not clearly proved by evidence. His evidence that the wife scolded him when he went to his father's house on the death of the child is not supported by pleadings and his case that she did not allow him to exercise conjugal rights are not proved as seen from Ex.R1, the legal notice, wherein it is stated that "my client and Devaki mentioned as No.1 are living together as husband and wife with love and affection." Therefore, the allegation that she did not allow him to exercise the conjugal rights does not appear to be correct. The wife had stated in her evidence that "my father-in-law said that if my husband should live with me, the patta of a house should be in his name at Valasaur." This is not challenged in cross examination. It is evident that she was removed from service after 1.3.2001 and admittedly, the husband went to her office and insisted that she should not continue to work in the interest of their married life. She had accepted it. Even after the delivery, a separate house was not vacated, the wife had paid the rent on the belief that the husband would come to see her and join her. The allegations of cruelty are vague and lack particulars. The wife had given up her job at his instance. The allegation that she denied him conjugal rights is not correct. She had in fact borne him a child which died. Her health reasons made her move to Valasayur. It was he who left her. She retained that home in the hope he would return to her. In view of the above, we are unable to grant him his prayer for divorce.
8. The conclusion of the Family Court is correct and therefore, no interference is called for. Accordingly, the civil miscellaneous appeals are dismissed. No costs.
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