ASHOK KUMAR SAKHUJA Vs. SWEETY

JUDGEMENT

(1.) This appeal has been directed against the order dated 19th April, 1991 passed by Ms. Kanwal Inder, Additional District Judge, Delhi whereby she has dissolved the marriage between the parties by passing a decree of divorce undr Section 13 (1-A) of the Hindu Marriage Act (for short the "Act").

(2.) Relevant facts as set out in the divorce petition are that the respondent-wifej filed the petition under Section 13(1-A) of the Act against the appellant-husband. They were married according to Hindu rites on 9.5.1979 at New Delhi but the respondent-wife was turned out of her matrimonial home on 24.6.1981 with a view to harassing her and with aintention not to taking her back. The appellant-husband had filed a petition No. HMA 118/83 under Section 9 of the Act for restitution of conjugal rights, which was decreed on 21.3.1987 by the court of Shri R.C.Jain, Additional District Judge. Delhi. In spite of passing such a decree for restitution of conjugal rights, there has been no cohabitation between the parties for a period of more than one year after passing of the said decree. Hence the petition under Section 13(IA) of the Act seking divorce, has been filed.

(3.) It may be noticed here that an execution application was filed by the appellant- husband seeking execution of the restitution of conjugal rights and the same was pending before court when petition under Section 13(1A) of the Act was filed. The petition under Section 13(1A) has been contested by the appellant-husband on the ground that the resopndent-wife cannot take the benefit of her own wrong because in spite of the decree for restitution of conjugal rights having been passed she has failed to join the society of the appellant-husband in spite of repeated requests and approaches made by the appellant-husband from time to time and his pending execution application. According to him, during the course of proceedings filed under Section 125 of the Code of Criminal Procedure on behalf of the respondent-wife, he has come to know that his wife was living with a third person, which fact was verified on an application moved by him before the learned Metropolitan Magistrate, Shahdara. In the replication, the same averments are reiterated. On the pleading of the parties the following issues were framed: