GANJA DEVI Vs. PURSHOTAM GIRI

JUDGEMENT

(1.) This first appeal from order has been filed by the wife against the order of the Additional District Judge, Delhi, dated 15th March, 1975. by which he has granted a decree for divorce by dissolving the marriage under section 13(1A) (i) of the Hindu Marriage Act (25 of 1955). hereinafter referred to as the Act.

(2.) The material facts of the case are that the appellant wife and the respondent husband, who were Hindus, were married on 16th April, 1963 according to Hindu rites. It is alleged that after a lew months the husband turned out the wife after treating her cruelly. Consequently, the wife filed a petition on 5th November. 1965 under section 10 of the Act for judicial separation. This was decreed ex party by Mr. Mahesh Chandra, Sub-Judge. I Class, by order dated 30th March, 1966 (copy Ex. P1). After sometime, the husband instituted a petition against the wife for dissolution of marriage on the 727 allegation of adultery with one Nanak Chand. This was disbelieved and Nanak Chand was found to be a friend of the husband. The petition was dismissed by Mr. K. S. Sidhu by order dated 23rd August. 1968 (copy Ex. RW 5/1). Eventually the husband instituted on 19th July. 1972 the petition which has given rise to the present appeal. It was alleged that the decree for judicial separation had been passed and for a period of two years or upwards there had not been any resumption of cohabitation and so the respondent was entitled to a decree for divorce under sub-section (1A) of section 13 of the Act. which has been inserted by section 2 of the Amendment Act 44 of 1964. The defence of the wife in the petition was that the parties had been reconciled and she had lived with the husband for about 1 month in December 1966 and January, 1967 at house No. 287. Jafarabad, Delhi and consequently, the allegations of the husband made in the petition were wrong and he was not entitled to a decree for divorce. On the pleadings of the parties, the following issues were framed : "1. Whether there has been no resumption of cohabitation for a period of more than two years after the passing of the decree for judicial separation on 30-3-1966 ? 2. Relief." By order dated 24th September, 1974 the following additional issue was framed: "If issue No. 1 is decided in the affirmative whether the petitioner is still not entitled to the decree for divorce against the respondent as he is taking advantage of his own wrong or disability for the purpose of the said relief within the meaning of clause (a) of sub-section (1) of section 23 of the Hindu Marriage Act ?"

(3.) The Court below after considering the entire material on record came to the conclusion that the respondent has proved issue No. 1. The court has answered the additional issue against the appellant and has granted a decree for divorce dissolving the marriage. Feeling aggrieved. the appellant wife has filed this appeal and her learned counsel has raised the following contentions ; 1. The finding of the court below on issue No. 1 is erroneous on the evidence on record ; and 2. The court below has erred in deciding the additional issue and it ought to have held that the conditions of clause (a) of section 23 of the Act must still be satisfied before the party is entitled to apply under section 13(1 A).