ARUN Vs. VARSHA

JUDGEMENT

(1.) This is an appeal filed by the petitioner-husband challenging the judgment and decree passed by the learned Judge of Family Court, Aurangabad in petition No. 38 of 2001, dismissing the petition of petitioner-husband filed under Section 13 (1-A) (ii) of Hindu Marriage Act, 1955 (hereinafter for the sake of brevity referred to as the "said Act"), praying therein for dissolution of marriage by decree of divorce. (For the sake of convenience, hereinafter the parties shall be referred by their status before the Family Court i.e. "petitioner" and "respondent").

(2.) Brief facts, giving raise to the present appeal, are as follows:-

(3.) Learned counsel for petitioner-husband (appellant) has submitted that after passing of decree for restitution of conjugal rights in favour of petitioner-husband in the year 1990, respondent-wife instead of joining the company of petitioner-husband, went on challenging the said decree by various proceeding up to this Court and this act of respondent-wife itself shows that she was not willing to join the company of petitioner-husband. Learned counsel further submitted that learned Judge of Family Court has misconstrued and misinterpreted the provisions of Section 23 of the said Act and thereby arrived at an erroneous conclusion. In fact, the Family Court ought to have granted decree for divorce on the sole ground that there has been no resumption between the parties for a period of one year after passing decree of restitution of conjugal rights. Learned counsel for petitioner-husband further submitted that after passing decree for restitution of conjugal rights, in the ancillary proceedings, an attempt was made for reconciliation but it was failed from the side of respondent-wife. There is sufficient evidence on record to show that reconciliation could not be materialized because of conduct of respondent-wife. Lastly, learned counsel for petitioner-husband invited our attention to the observations recorded by this Court in Family Court Appeal No. 19 of 2000, which was preferred by respondent-wife against petitioner-husband challenging the order passed by Principal Judge, Family Court, Aurangabad in petition C-4 of 1996 under sections 18 and 20 of Hindu Adoption and Maintenance Act 1956. Learned counsel for petitioner-husband has submitted that appeal deserves to be allowed by setting aside the judgment and decree passed by the learned in charge Judge, Family Court, Aurangabad on 24.3.2004 in petition No. 38 of 2001 and the petition may be allowed and the marriage between the petitionerhusband and respondent-wife be dissolved by decree of divorce under Section 13(1-A) (ii) of the said Act.