PUSHKAR GUPTA Vs. NARENDER KUMAR GUPTA

JUDGEMENT

(1.) The joy of success of counter claim filed by the appellant/wife in HMA Petition No. 07/10 was short lived. Her grievance is that on the basis of decree of restitution of conjugal rights passed in her favour, it is the respondent/husband who despite being at fault, ultimately secured a decree of divorce under Section 13(1A)(ii) of Hindu Marriage Act, 1955 in HMA Petition No.1228/2011.

(2.) We shall hereinafter refer the parties as the 'wife' and the 'husband'.

(3.) Undisputed facts of this case are that the parties got married on July 01, 1994 as per Hindu rites and customs. The marriage was consummated. The parties were blessed with twin daughters on March 11, 1995. The parties are living separately since May 11, 1995. The divorce petition being HMA No.07/10 filed by the husband on the ground of cruelty and desertion was dismissed vide judgment and decree dated November 30, 2010. However, the counter claim by the wife for restitution of conjugal rights was allowed. It is not disputed that despite there being a decree of restitution of conjugal rights in favour of the wife, the parties have not resumed cohabitation. It is also not disputed by the husband that the reason for his disinclination to comply with the decree of restitution of conjugal rights is mainly for the reason that his entire family had suffered on being made accused by the wife in the criminal case being FIR No.56/98 PS Saraswati Vihar under Section 406/498-A/34 IPC. Not only he, even his paralytic mother who was on wheel chair, his sister and his brother had to remain in jail in the said FIR. His mother and sister expired during trial. The trial has concluded only in the year 2012 and ended in acquittal of the husband and his brother.