Point of Law:Divorce – within one year of marriage – Not entitled for - no restitution of conjugal rights even after the divorce passed against the husband and therefore, he is not entitled to the relief of divorce, without considering the ambit and purport of Section 27(2)(ii) and Section 34 of the Act of 1954.

JUDGMENT :

M.G.UMA, J.

Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally.

2. The appellant-husband is before this Court being aggrieved by the impugned judgment dated 03/04/2019 passed in M.C.No.395 of 2016 on the file of II Additional Principal Family Court At Mysuru, (hereinafter referred to as “the Trial Court” for the sake of brevity) dismissing the petition filed under Section 27(2)(ii) of the Special Marriage Act, 1954 (hereinafter referred to as “the Act of 1954” for the sake of brevity).

3. The facts of the case in brief are that, the appellant is the husband and the respondent is the wife. They are Christians by faith and their marriage was solemnized on 18/04/2008 at Wesley Cathedral in Mysuru. It is alleged that the respondent used to harass and abuse the appellant in filthy language. She demanded for a separate house. Even after shifting to a rented premises in Kuvempu Nagar, Mysuru, the respondent had not improved her behavior. Instead, she filed a complaint against the appellant by making false allegations. Later, the respondent left the matrimonial house and started residing in her parents house without informing him.

4. It is stated that the appellant had filed the petition for divorce in M.C.No.81 of 2009, but subsequently he withdrew the same as the petition was filed within one year from the date of marriage. However, he was paying monthly maintenance of Rs.3,000/- to the respondent as per the direction of the Court. He paid the maintenance till April 2011. The respondent had filed C.Misc.No.48 of 2010 before the learned III Additional Civil Judge and JMFC, Mysuru under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act” for the sake of brevity) and got an ex-parte order, directing the appellant to arrange for a house and also got issued a non-bailable warrant against the appellant. It is stated that the appellant preferred the appeal in Criminal Appeal No.144 of 2013 before the learned I Additional District and Sessions Judge, Mysuru, which came to be allowed and the matter was remanded to the Trial Court. After contest, C.Misc.No.48 of 2010 was again allowed directing the appellant to pay maintenance of Rs.2,000/- per month. Subsequently, the appellant filed C.Misc.No.65 of 2014 seeking modification of the order directing him to pay maintenance, under changed circumstances, as he was suffering from hyper tension and chronicle kidney disease.

5. It is contended that the respondent filed MC No.182 of 2011 seeking restitution of conjugal rights, while the appellant filed M.C.No.435 of 2011 seeking dissolution of marriage. The petition filed by the appellant seeking dissolution of marriage came to be dismissed, while the petition filed by the respondent seeking restitution of conjugal rights came to be allowed by a common judgment dated 17/04/2015. In the meantime, respondent had filed the petition under Section 125 of the code of Criminal Procedure, 1973 seeking maintenance which came to be dismissed on 12/01/2016. Thus, it is stated that the respondent is harassing the appellant since the date of marriage and she has voluntarily deserted him and residing in her parental house.

6. It is stated that the appellant is unemployed as his services were terminated on medical grounds. The marital relationship between the parties is strained beyond conciliation and they are residing separately for more than seven years. Even though there is a decree for restitution of conjugal rights in favour of the respondent vide judgment dated 17/04/2015, there was no cohabitation and the cause of action for the petition arose on 16/04/2016 i.e., after lapse of statutory period provided under Section 27(2)(ii) of the Act of 1954. Therefore, he prayed for allowing the petition by dissolving the marriage by a decree of divorce.

7. The respondent appeared before the Trial Court and resisted the claim of the appellant, deny