SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

1992 Supreme(AP) 287

Andhra Pradesh High Court
Judges : IYYAPU PANDURANGA RAO, V.BHASKARA RAO
M.Shakuntala - Appellant
Versus
M.Shivaraj - Respondent
Rev.P.No.14437/88 in C.M.A.No.385/81
Decided On : 04-30-92
Advocates Appeared :
Mr. K. Narasimhachari,Mr. C. Poornaiah

Headnote:Civil Procedure Code, Or47, Rule 1 - Decree for divorce granted by trial Court in favour of husband on ground of desertion by wife - Reunion between Husband and wife pending appeal in High Court - Dismissal of appeal by High Court for not contesting appeal by wife on advice of husband Review application filed later by wife in appeal on ground of ill-treatment of husband after she begot child during reunion Court can review judgment in appeal on basis of fresh evidence

       Held: In this case, the evidence shows that though the wife wanted to appear before the Court in the appeal, the husband has agreed her not to appear before the Court, as both of them were living together and believing the words of the husband, the, wife did not appear before the Court This it self is a sufficient cause and it can be said that she was prevented by the husband from appearing in the Court and this is a good reason for receiving the evidence in the review petition Admittedly, the wife is an illiterate lady She has no idea of the court proceedings Therefore, when the Court is satisfied that the new evidence produced is such that it could not be adduced earlier inspite of due deligence, the Court can receive the same After considering such evidence along with the other evidence on record, the Court can review the judgment The Court can take note of the circumstances to show that the husband has condoned the desertion and requested the wife to come all alive with him and accordingly both of them lived together after the decree of divorce, pending the appeal in the High Court

       This is a strong circumstance to review the judgment

       Rev P Allowed

BHASKAR RAO, J.

( 1 ) THIS is a petition filed to review the Judgment and decree of this Court dated 2-9-1986 passed in the above appeal and to allow the same.

( 2 ) THE facts of the case are that the marriage of the petitioner with the respondent took place on 28-4-1974 at the house of her husband in chinthalabasthi, Hyderabad. Thereafter they lived together happily for sometime and a female child was born. Later on some differences arose. Therefore, the husband filed O. P. No. 114/1977 on the file of the IV Addl. Judge, city Civil Courts, Hyderabad, for a decree of divorce on the ground of desertion by the wife. The lower court after considering the entire material on record allowed the O. P. and granted a decree of divorce. Against that Judgment, the wife filed the appeal, C. M. A. No. 385 of 1981. The appeal came up for hearing before a Division Bench of this Court consisting of K. Amareswari, J and one of us (Bhaskar Rao, J. ). When the appeal came up for hearing this Court directed the learned counsel to produce the parties in the Court with a view to bring in reconciliation, if possible. Both the parties were not present and the counsel for both parties represented that they were not able to contact their parties. Therefore, this Court considering the material on record, dismissed the appeal filed by the wife.

( 3 ) THEREAFTER the wife filed the present review petition stating that subsequent to passing of the decree for divorce by the lower Court, there was re-union between the petitioner and the respondent and they lived together as husband and wife and a female child was also born to them on 20-10-1984, by name m. Mahalaxmi, in Vijayameri Hospital, Hyderabad. When the appeal came up for hearing, the respondent-husband advised the petitioner-wife that it is not necessary to be present before the Court as they have reconciled. So believing the advice of her husband, she did not attend the Court and she did not evince any interest in the appeal. Therefore, this Court dismissed the appeal without her contesting the same. It is also stated that during the said period of re-union between the petitioner and the respondent, a female child was also born to them on 20-10-1984, named as Mahalaxmi. These allegations were disputed by the counsel for the husband. Therefore, this Court called for a finding from the trial court and both parties were permitted to file affidavits and adduce evidence in the lower court. In pursuance of the order of this Court calling for a finding, both parties appeared before the Court below and filed affidavits. The wife examined herself as R. W. 1 and also examined another witness as R. W. 2. The husband also appeared and examined himself as P. W. I. The wife filed I. A. No. 2787/89 in the lower court for appointment of the Director or such other Officer of the Centre for Cellular and Molecular Biology at Hyderabad for conducting blood test of the husband, Shivaraj, and the disputed child Mahalaxmi and also smt. Shakuntala herself to determine the paternity of the second child Mahalaxmi. She also filed I. A. No. 2786/89 for a further direction that the husband should bear the expenses of that test as she is not in a position to bear the said expenditure. The lower Court, after hearing both sides allowed both I. As by its common order dt. l 6-10-1989. Against the said common order the husband filed cr. P. Nos. 446/90and445/90in this Court, but both these C. R. Ps were dismissed in limine on 23-2-1990. Thereafter the husband did not comply with the order dt. 16-10-1989 of the lower court in I. A. Nos. 2787/89 and 2786/89 and did not undergo the test. Thereafter, he filed another I. A. No. 1314/90 to review the order in the above I. As, but the said review petition was dismissed by the lower court on 31-8-1990 on the ground that the order dt. 16-10-1989 in I. A. Nos. 2786/ 89 and 2787/89 stood merged in the order of the High Court passed in c. R. P. Nos. 445/90 and 446/90. The estimated expenditure for


















Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top