Bettini Rangayya vs Bettini Sesharathnam

Chandra Reddi, J.—This Is an appeal against the order of the learned Subordinate Judge of Tenali dismissing the petition u/s 5 of the Madras Act 6 of 1949, the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. The appellant is the. husband and the respondent is the wife and the petition is founded on Clause (c) of Section 5, namely, that the respondent deserted the appellant for a continuous period of not less than three years immediately preceding the presentation of the petition. This petition was opposed by the respondent on the ground that Clause (c) of Section 5 had no application to this case, because she had to live away from her husband owing to the cruel treatment meted out to her by him and that the right to live separately from her husband and get maintenance was declared in A.S. No. 59 of 1946 on the file of the Subordinate Judge''s Court of Tenali.

To appreciate the relative contentions of the parties, it is necessary to refer to the background of this litigation.

The appellant filed O.S. No. 349 of 1944 on the file of the District Munsif''s Court, Tenali, for restitution of conjugal rights. Shortly after, the respondent, i.e., the wife instituted O.S. No. 72 of 1945 on the file of the District Munsif''s Court, Tenali, for maintenance against her husband alleging cruelty and desertion by the husband. The , trial Court dismissed the wife''s suit and decreed the husband''s suit. But an appeal O.S. No. 72 of 1945 was decreed and the suit by the husband, namely O.S. No. 349/44, was dismissed. These decisions became final as the matters were not carried in appeals to the High Court.

While matters stood thus, Act 6 of 1949 was passed and the appellant who was obviously anxious to get rid of the decree against him for payment of maintenance to his wife, sought the benefit of Section 5 of the Act and for that purpose filed the petition giving rise to this appeal.

The learned Subordinate Judge dismissed the petition for the reason that it could not be said that the wife, without just cause, deserted the husband for a continuous period of not less than three years immediately preceding the presentation of the petition, as she was entitled to live away from her husband and claim maintenance by virtue of the decree in A.S. No. 59 of 1946. Mr. Suryanarayana in this appeal submitted that the parties being young couple should be brought together by directing the wife to live with her husband. But the course chosen by the appellant is not conducive to that course, nor a Court can compel a wife to live with her husband u/s 5 of Act 6 of 1949. On the other hand, the object of Section 5 is to grant a divorce and not to bring the wife and the husband together. No other point was argued, and. rightly, as the appeal is unarguable. In the result, the appeal is dismissed with costs.