Divorce must be granted in a dead marriage.

R. Regupathi, J.

The plaintiff in O.S.No.1/96 on the file of Family Court, Madurai, is the appellant herein and he has filed the said suit under Sec.307 of the Muslim Act for dissolution of his marriage with the first respondent herein. The second respondent is the President of the Jamadh in whose presence the marriage was performed.

2. As per the averments in the plaint, the appellant married the first respondent on 2.6.1983 and gave birth to a female and a male children on 12.6.1984 and 1.12.1986, respectively. The appellant has made several allegations against the first respondent in the plaint for seeking dissolution of marriage which could be categorised as follows:

(a) Though a coconut thope to an extent of six acres belonged to the first respondent, her father and brother by coercion obtained a deed of settlement in their favour.

(b) The first respondent was already married, suppressing her earlier marriage, the marriage with the appellant was performed.

(c) The family members of the first respondent deviate from the muslim culture, adapting western culture.

(d) The first respondent indulged in unwarranted activities and when questioned she denied the same.

(e) The first respondent did not look after the children properly.

(f) The family members of made arrangements for another marriage her and the first respondent was misdirected.

(g) In view of the frequent quarrels between the appellant and the first respond there was several panchayats and litigation in previous occasions.

(h) Finally a separate residence was arranged and the first respondent lived till 5.6.1995, during that period they were leading a happy life. But suddenly the first respondent deserted him, the reason being, she was having personal affairs, she went to Ramnad and leading a wayward life contrary to Islamic culture.

3. The first respondent filed her written statement as follows:

(a) The children were entrusted with her custody by order in G.W.O.P.No.7/90 of the file of the learned District Judge, Ramanathapuram at Madurai, and the children were with her. In that case, the respondent has filed a letter dated 28.10.1986 wrote by the appellant pronouncing triple talak.

(b) Further on 13.9.1993 he appellant, through his lawyer, had also sent a notice pronouncing talak, which was also said to have been filed before the lower Court.

(c) In view of the aforesaid circumstances, the first respondent was already divorced, as per Muslim Law, once the wife was divorced the husband cannot remarry her unless the following conditions are fulfilled:

"(i) the wife should observe iddat.

(ii) After observing iddat, the wife, should be lawfully married to another person.

(iii) Such intervening marriage must be actually consummated.

(iv) the second husband must pronounce triple talak.

(v) the wife should observe iddat after the said talak.”

(e) False allegation had been purposely made in the plaint to create a cause of action.

(f) At any rate, she had no objection for divorce, though her case was that she had already been divorced.

4. The plaint was filed on 4.1.1996 and the written statement on 25.6.1996. On 10.4.1997 the respondent filed a memo as follows:

“Without prejudice to the contentions of this defendant in her written statement, it is submitted that the suit may he decreed for divorce and thus render justice”

On 16.4.1997, the appellant filed a memo in which he has stated as follows:

“The divorce petition has been filed by mistake. Instead of praying restitution of conjugal right, he has prayed for divorce. There was no proper legal assistance at that time. The plaintiff therefore prays that the plaint need not be acted upon and prayed for dismissal of the petition to facilitate to file a fresh petition for restitution of conjugal right.”

5. On consideration of the rival contentions and in view of the memo filed by both the parties and further in view of the reason that no witness were produced before the Court, the learned Judge Family Court, has passed the judgment dec