THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A. No.2360 of 2002 ORDER : (Per GBP, J.) The petitioner in O.P.No.45 of 2000 on the file of the Senior Civil Judge, Nalgonda, filed this appeal against the dismissal of her petition by the order, dated 24-06-2002 with costs. 2. The petitioner/appellant contended that after her marriage with the respondent 15 years prior to the petition, they lived together happily for 13 years and were blessed with three daughters and a son. The appellant alleged that the respondent suddenly left her society after the third daughter was born and went to Padara Village leaving the appellant at Kulamunthalapahad. The appellant further alleged that the respondent developed illicit intimacy with one, Chandrakala and was living with her and did not heed to the advice of the village elders. The appellant, therefore, requested the Court to direct restitution of conjugal rights. 3. The respondent, while admitting the marriage with the appellant and having three daughters and son after living together for more than 13 years, contended that the appellant herself developed dislike for him and his parents, who were forced to shift to Padara of Mahaboobnagar District due to some inauspicious incidents at native place. The respondent claimed that his parents purchased lands at Padara by selling the lands at the native place and the appellant did not like to come with them and stayed back at Kothabai. The respondent further contended that when mediation also failed, he filed O.P.No.1 of 1998 for restitution of conjugal rights, by which time the appellant filed O.S.No.2 of 1998 on behalf of the minor children for partition of the properties. Subsequently, the matter was compromised and an agreement was executed on 21-01-1998, according to which, the appellant was paid Rs.3,50,000/- under four cheques. The respondent contended that the appellant having received the said amount, avoided his society without any reasonable cause and did not return to him in spite of his attempts and in fact the respondent was threatened by the brothers and parents of the appellant when he made such attempts for reconciliation through elders. Hence, the respondent contended that the appellant, her parents and brothers are interested only in the properties of the respondent and his parents and they also got foisted a false case in Crime No.66 of 2000 against him for the alleged offence punishable under Sections 498-A and 494 of the Indian Penal Code. The appellant also filed another suit in O.S.No.32 of 2000 as guardian of her minor children for partition and the appellant, having suppressed all these facts, was innocuously claiming the relief of restitution of conjugal rights. The respondent also contended that as he last resided together with the appellant at Padara of Mahaboobnagar District, the Court at Nalgonda had no jurisdiction and thus sought for dismissal of the petition with costs. 4. During enquiry, the appellant examined herself as P.W.1 and her brother as P.W.2, while the respondent got himself examined as R.W.1 and marked Exs.B1 to B8. 5. The trial Court rendered the impugned order referring to oral and documentary evidence of the parties and noting that after the marriage about 15 years earlier, the appellant and respondent lived together for 13 years and were blessed with three daughters and a son and that it was somewhere in 1997 that the differences in marital life started. While referring to the conflicting contentions about reasons for separation, the trial Court noted that Ex.B4 agreement was ultimately entered into between the parties settling their differences, including the Court cases pending by then. The trial Court also noted that the appellant had not referred to either the earlier litigation or the terms in Ex.B4 in the petition and also did not explain as to why these facts were suppressed from the Court. The trial Court further noted that a specific term is there in Ex.B4 that the appellant should join and live with the respondent wherever he was living, but the appellant during her cross-examination as P.W.1 positively stated that she was not willing to join the respondent and that respondent himself should come and live with her. The trial Court presumed from the said statement of the appellant the negative attitude of the appellant towards the respondent and the trial Court further noted that the version of the appellant in Crime No.66 of 2000, O.P.No.31 of 1998 and O.S.No.2 of 1998 was mutually inconsistent, which discrepancies were also not explained by the appellant. It was further noted by the trial Court that in fact the efforts of the appellant were only to get at the properties of the respondent and his parents and considered the same to be further probablised by the filing of O.S.No.32 of 2000 by the appellant after compromise of the earlier suit and after receiving Rs.3,50,000/-. The trial Court, therefore, considered that the request of the appellant for restitution of conjugal rights cannot be sustained and dismissed the petition. 6. The appellant challenges the said order solely on the ground of the failure of the trial Court to appropriately appreciate the pleadings and evidence placed before it. The appellant contended that as the respondent was living with Chandrakala at Padara, the appellant could not have gone there to live with the respondent and hence she desires the impugned order to be reversed. 7. Heard learned counsel for both sides. 8. The only point for consideration is, Whether the appellant was able to probablise any justification for her request of ordering restitution of conjugal rights against the respondent? 9. It is seen from Ex.B4 agreement between the parties, which was admittedly voluntarily entered into by the husband and wife with the intervention of eight village elders that the interests of the children of the appellant were specifically safeguarded by requiring the respondent and his father to keep the properties purchased at Padara in their name, which were acquired by sale of the properties at the native place and also by keeping Rs.3,00,000/- in fixed deposit in the names of two daughters of the appellant and the respondent. The interests of the appellant were also clearly safeguarded by directing Rs.50,000/- to be kept in joint savings account in the names of the appellant and the respondent. The condition for the couple resuming their marital life was specifically agreed to be return of the appellant to her husband as per the wishes of the husband wherever the husband resided. It was also specified that the children also should be under the care and custody of the appellant wherever the appellant lived. When it was the specific condition that the appellant should go to whichever village the husband was residing as per his wishes and live with him along with their children and when the appellant positively stated in her cross- examination as P.W.1 during the enquiry that she will not go back to the respondent where he was living and the respondent himself had to come to her, there was an obvious violation and breach of Ex.B4 agreement by the appellant herself. According to the material available on record, it is clear that in the first 13 years of marital life, the appellant herself had absolutely no complaint against the respondent and led a very happy marital life being blessed with three daughters and a son. The differences that arose subsequently sometime in 1997 also were made visible only by the positive cases initiated by the appellant by filing two suits for partition and a criminal case for the alleged offences under Sections 498-A and 494 of the Indian Penal Code, whereas the attempt of the respondent initially was to get back the wife by filing O.P.No.1 of 1998 for restitution of conjugal rights before the Senior Civil Judge, Nagarkurnool. The respondent and his father submitted themselves to keep all their resources at the availability of the appellant and her children by keeping the properties at Padara in their name and by keeping the balance of sale proceeds in fixed deposit or savings bank account in the names of two daughters and the respondent. The analysis of the evidence by the trial Court about the probabilities arising out of the conflicting claims cannot be considered to be unreasonable or improper. The very conduct of the appellant in receiving the benefit of the compromise by having the cash of Rs.3,50,000/- paid by the respondent and then again subjecting him to another suit was rightly relied on by the trial Court to conclude the disentitlement of the appellant to the relief of restitution of conjugal rights. There is nothing to differ with the Judgment of the trial Court. 10. For the reasons stated above, the Civil Miscellaneous Appeal is dismissed without costs. ___________________ B.PRAKASH RAO, J. ______________________ G.BHAVANI PRASAD, J. 21st October, 2009. skmr THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A. No.2360 of 2002 Date : 21-10-2009 Between : Boddupally Edamma .. Appellant And Boddupally Allaji .. Respondent