BAL KISHAN MEHTA Vs. SMT. RAVINDER KAUR MEHTA

JUDGEMENT

(1.) BY this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the Appellant seeks to set aside the impugned judgment and decree dated 28.03.2009 passed by the learned trial court whereby the petition filed by the Appellant under Section 13(1) (ia) and (ib) of the Hindu Marriage Act for divorce was dismissed.

(2.) BRIEF facts of the case relevant for deciding the present appeal are that the marriage between the parties was solemnized on 23.1.1990 at Delhi according to Hindu rites and ceremonies and no child was born out the said wedlock. The Appellant has alleged that the Respondent was cruel to him from the very beginning and did not fulfil her matrimonial obligations by refusing to have sexual intercourse with him. It is also alleged that the Respondent has deserted him w.e.f 2.10.2005 and never returned back. Consequently the Appellant filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 28.3.2009 was dismissed. Feeling aggrieved with the same, the Appellant has preferred the present appeal.

(3.) COUNSEL for the Appellant further submits that the Appellant is also entitled to the decree of divorce on the ground of desertion as well as despite sufficient efforts made by the Appellant, the Respondent refused to join back the company of the Appellant thereby permanently bringing cohabitation to an end. The contention of counsel for the Appellant is that had the Respondent been serious enough to return back to join back the matrimonial home, at least she could have appeared in the said divorce proceedings to make such an offer, but her non -appearance before the learned trial court and before this Court as well clearly shows the clear intention on the part of the Respondent not to resume the cohabitation. Counsel for the Appellant also submits that the Respondent did not turn up before the Court in the joint divorce petition although the same was duly signed by her and such derelict conduct on the part of the Respondent clearly demonstrates that she was neither willing to give divorce to the Appellant nor she was prepared to restore back the matrimonial ties. In support of his arguments, counsel for the Appellant has placed reliance on the following judgments: