A decree for restitution of conjugal rights cannot be granted in cases demonstrating irretrievable breakdown of marriage and mental cruelty.

J U D G M E N T

A.M. Babu, J.

Husband is the petitioner and the wife is the respondent in a petition filed by the husband. The wife lost and the husband won. The family court directed restitution of the conjugal rights. The wife is in appeal. 2. Pleadings are elaborately stated by the family court. We therefore do not propose to reproduce such pleadings.

3. The marriage was solemnized on 13.03.1995. A boy was born to the couple on 23.06.1996. They lived together in the house of the husband till 15.11.2005. Their relationship was unfriendly almost throughout.

4. Heard Sri. T. Madhu and Smt.R.Padmakumari, the learned counsel appearing for the appellant and the respondent respectively.

5. The spouses did not have a single good word to complement each other. His petition is full of allegations and accusations against her. Her written- statement was also not different. He tried to colour her as a person having mental disorder. The family court did not accept his contention; rightly too. No evidence was produced in support of the contention that the wife was mentally abnormal. A reader of the petition for restitution of conjugal rights may think that the destination was to get a decree of divorce. Each spouse changed the name of their child one time each. The husband finds fault with the wife for changing her own name. The change of name of herself and her child was at her instance and it was contended to be one of the symptoms of mental disorder. All those allegations against the wife by the husband do amount to mental cruelty. The wife is therefore entitled to stay away from the husband.

6. After having read the pleadings and evidence we are satisfied that the matrimony has been broken down irretrievably. The family court did not enter a definite finding this way or that way. Paragraph 9 of the judgment of the family court is the place where we find the reasons for granting the decree. The family court observed that the husband and wife were not made for each other. The family court stated that all the allegations in the petition were made as if the petition was one seeking divorce. Despite such observation or finding, the family court directed the wife to join the husband. In order to direct so, the judge of the family court relied on his own philosophies and gave some advices to the parties. From the allegations and accusations made by the husband against the wife, we are sure that the petition was filed not because he was wanting his wife back. The decree of restitution of conjugal rights granted by the family court cannot stand.

The same is liable to be set aside.

7. The appeal is allowed. The impugned judgment and the decree which followed it stand set aside. The motion of the husband for a decree for restitution of conjugal rights shall stand dismissed. In the circumstances of the case, we make no order as to costs.

K. HARILAL JUDGE