SUNITA RAJENDRA NIKALJE Vs. RAJENDRA EKNATH NIKALJE

JUDGEMENT

(1.) THE marriage between appellant-wife and respondent-husband came to be solemnized according to Buddhist Rites on 17-1-1988. The couple was blessed with a daughter by name Sampada born on 15-12-1986. The delivery took place at the place of appellants parents which is situated nearby the matrimonial house. Thereafter the appellant resumed cohabitation. However, on 24-2-1989 the respondent left appellant and the daughter at appellants parents house and was not allowed to return. The appellant filed Petition No. PE-1964/89 for her maintenance and for maintenance of the daughter under section 125 of Criminal Procedure Code. The respondent filed Petition No. PE/969/89 for restitution of conjugal rights. The application filed by the appellant for maintenance and the petition filed by the respondent came to be heard together. The learned Judge of the Family Court granted maintenance for the daughter at the rate of 100/- per month from 16-4-1989 and refused for the petitioner. The petition filed by the respondent for restitution of conjugal rights was decreed on 20-1-1991.

(2.) THE respondent filed Petition No. PA/116/92 on 15-2-1992 claiming divorce under section 13 (1-A) (ii) of Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act) on the ground that there was no resumption of cohabitation for more than 1 year after the date of passing of the decree for restitution of conjugal rights. It was the case of the respondent that he had sent a letter dated 8-3-1991 (Ex. 21) by registered post A. D. to the appellant calling upon her to resume cohabitation. She received the same but neither replied nor resumed cohabitation. Thereafter he sent another letter on 16-4-1992 (Exh. 22 ). The same was refused by the appellant (Exh. 23 ). Another letter was sent on 26-9-1991 (Exh. 25 ). It was also refused and returned on 28-9-1991 (Exh. 26 ). Thereafter on 14-10-1991 one more letter was sent (Exh. 27) calling upon the appellant to resume cohabitation, but it was refused on 16-10-1991 (Exh. 28 ). She has not resumed cohabitation. Therefore, she has failed to resume cohabitation in spite of the attempts made by the respondent and there is no bar in granting the decree for divorce.

(3.) THE appellant filed written statement (Exh. 8) on 23-8-1992 and inter-alia contended that immediately after the decree for restitution of conjugal rights was passed on 20-1-1991, the appellant went to the house of respondent along with daughter for resuming cohabitation. However, mother of respondent declined to accept her and she was driven out. After she received the first letter dated 8-3-1991, she went along with her mother and neighbours to the house of respondent on 18-9-1991. However, the respondent and her mother threatened her and others, and she was forcibly driven out along with the child. This has happened in the afternoon and in the evening she filed complaint (Exh. 40) with Janwadi Police Chowky. Respondent was called at the Police Chowky. However, he declined to accept her pointing out the litigation between the parties. She contended that she has not received other letters. It was contended that respondent was in the wrong and was trying to take advantage of his own wrong and cannot get the decree in view of provisions of section 23 (1) (a) of Hindu Marriage Act.