Kesava Pillai Krishna Pillai vs Narayana Pillai Kesava Pillai and Others

Govinda Pillai, J.—The Plaintiff has preferred this appeal against the order of the lower Court refusing restitution of conjugal tights. Defendant 3 is the Plaintiff''s legally wedded wife. Defendants 1 and 2 are Defendant 3''s parents It was stated that at the instance of Defendant 1 and 2, Defendant 3 was not going to live with the Plaintiff. Defendants 1 and 2 denied to have anything to do with the separate living of the Plaintiff and Defendant 3. Defendant 3 admitted her marriage with the Plaintiff but contended that she was not willing to live with the Plaintiff as he was living in adultery with another woman by name Chellamma. It was also contended that though the Plaintiff and herself lived for some time together in a house belonging to the Plaintiff''s sister, she had been taken to her parents in Chmgom 1115 on the understanding that the Plaintiff would put up a building and take her there. Till the end of 1115, the Plaintiff paid her the necessary maintenance and during this period a child was born in Medom 1115. The Plaintiff began to neglect her and the child from the beginning of Chingom 1116. Therefore, after issuing a notice in 1110 Defendant 3 had filed a suit O. S. 361/1119 in the Munsif''s Court, Kottarakara for maintenance to herself and her minor child. The present suit is a counter-blast so as to defeat her right for maintenance. The offer of the Plaintiff to take back Defendant 3 to live with him was characterised to be not supported by any bona fides. She, therefore, contested the Plaintiff''s claim for restitution. The learned Judge found that the Plaintiff''s offer was not supported by any bona fides, that he was not, therefore, entitled to restitution of conjugal rights and that the suit had to be dismissed with costs to Defendant 3. Defendants 1 and 2 were directed to suffer their costs. The Plaintiff has come up in appeal against this decree Defendants 1 and 2 have filed a cross appeal claiming their costs in the lower Court.

The Plaintiff''s marriage with Defendant 3 in Vrisohigom 1114 and the birth of a child as a result of that union are now admitted by the Plaintiff. He bad nothing to say against Defendant 3''s conduct or character or against the paternity of the child. It was strange that no mention of that child is made in the plaint, but when the Plaintiff was examined as p. w. 1 he imputed unchastity to Defendant 3 and questioned the parentage of the child. Though this statement was made after the suit was filed, yet it is a sufficient indication as to the way in which the Plaintiff''s mind was working. It would also certainly indicate to what extent his offer to take back Defendant 3 was supported by bona fides. This attitude would also show that there was no genuine and sincere desire on the part of the Plaintiff to get the restitution prayed for. As pointed out in Kochuhunju Alia v. Kochuhunju 1945 T. L. R. 373, restitution should be refused when the object of the husband is to evade payment of separate maintenance claimed by the wife. In Devadasan v. Elsie Daniel 1947 T. L. R. 781, the husband who bad filed a suit for restitution of conjugal rights bad indicated that he did not have any faith in the moral character of his wife. Such a conduct was sufficient to subject the wife to constant insults and abuses and it would be a miserable life if the wife is compelled to live with such a suspicious husband. Apart from this there is also the direct evidence given by D. ws. 2, 3 and 4 that the Plaintiff''s character was also not above board. His Lordship considered the evidence and proceeded. The suggestion made on behalf of Defendant 3 that the Plaintiff was not leading a pure life was, to a considerable extent, true.

It had been admitted by the Plaintiff as P. W. 1 that after 1116 he had not given any maintenance to Defendant 8 and the child. His plea was that they had not demanded the same. It was his duty to see that his wife and child were properly maintained and were kept above want.

In Vrischigom 1119 the suit for maintenance was filed by Defendant 3 in the Kottarakara Munsif''s Court. Exhibit I 13 the copy of the plaint, Ex. II, copy of the present Plaintiff''s written statement in that case and Ex. IV, copy of the Progress Diary of that case. Exhibit IV would show that this Plaintiff had resorted to all kinds of tricks to see that the trial of the case was retarded. When it was found that it was not possible to do so, he had filed this suit more than a year after the maintenance suit was filed. This was, therefore, certainly a counter blast to that suit for maintenance.

The Plaintiff bad examined Chellamma''s mother as P. W. 2 and her alleged husband as P.W. 5. Except to mention that there was some illegal relationship between the Plaintiff and Chellamma, it was not necessary to consider their evidence in detail. The learned Judge who had examined these witnesses had held that the evidence did not justify an order for restitution of conjugal rights. We are in perfect agreement with the findings thus entered by the learned Judge. We, therefore, confirm the decree of the lower Court and dismiss the appeal with costs.

As regards the cross appeal filed by Defendants 1 and 2, it was the Plaintiff''s case that Defendant 3 was not willing to live with him at the instance of these Defendants. So they were made parties and as no relief had been claimed against them, there was no necessity for them to enter appearance, We do not, therefore, think that the discretion exercised by the learned Judge in disallowing their costs requires any interference, The cross appeal is, therefore, dismissed, but in the circumstances, without costs.