HARSHABEN Vs. PRAFULCHANDRA SHANTILAL SHAH

JUDGEMENT

(1.) THIS First Appeal has been directed against the Judgment and Decree pronounced by the Ld. Judge, City Civil Court, Court No. 15, Ahmedabad, in Hindu Marriage Petition No. 131 of 1985 granting the decree of divorce in favour of the original applicant husband.

(2.) THE present Appellant is the original opponent wife, while the present Respondent is the original applicant husband. The original applicant husband Prafulchandra Shantilal Shall had instituted the Hindu Marriage Petition against the original opponent wife Harshaben Shah for obtaining a decree of divorce Under Section 13(1)(a)(ii) of the Hindu Marriage Act. It is his case that the marriage between the parties had taken place on 28th April, 1980 and Godhra according to Hindu Vedic Rites and that a daughter has been born out of the above said wedlock, who was aged about 31/2 years at the time of filing of the petition. It is the case of the applicant husband that the opponent wife had left the matrimonial home on 18.8.82 without any reasonable excuse and thereafter -he had filed Hindu Marriage Petition No. 109 of 1983 for the restitution of the conjugal rights against the opponent wife. The City Civil Court at Ahmedabad was pleased to grant a decree of restitution of conjugal rights by the orders dated 30th April, 1984 in favour of the applicant husband and against the opponent wife. It is further the case of the applicant husband that after obtaining the above said decree of restitution of conjugal rights he had sent his brother Pankaj to opponent wife with a view to persuade her to shift to matrimonial home but she could not be persuaded. Later on, according to the case of the applicant husband, he had sent two letters to the opponent wife dated 15th March 1985 and 25th March 1985 requesting her to revert to the matrimonial home but she has not acted accordingly. Therefore it is the case of the applicant husband that there has h - -en no restitution of conjugal rights or co -habitation between the parties to the marriage after a period of more than one year after passing of the decree, he is entitled to obtain a decree of divorce or dissolution of marriage.

(3.) The above said case of the petitioner husband has been challenged by the opponent wife by filing reply at E. 13 She has denied the allegation made out by petitioner husband and has contended that the petitioner husband used to pick up quarrels with her and that she was driven out of the matrimonial home and ultimately she was obliged to file -the Maintenance Application at Godhra. It is her case at later on some talks of compromise were going on and therefore she had ultimately withdrawn the above said application for maintenance. It is also contended by her that the decree in the formal Hindu Marriage Petition was obtained by the husband behind her back because her daughter was not keeping well and she was not in a position to attend the Ahmedabad Court. It is also her say that she is ready and willing to go and reside in the company of the petitioner husband if he is desirous of keeping her properly without any rental or physical cruelty. It is on the above said basis that the opponent wife has prayed for the dismissal of the petition of divorce against her.