YAMSANI JANAMMA Vs. YAMSANI VEERESHAM

JUDGEMENT

(1.) THIS appeal is filed against an order in OP 217 of 1983 (on the file of the Subordinate Judge, Karimnagar) granting divorce to the parties under Section 13 (1 A) (ii) of the Hindu Marriage Act. Section 13 (la) (ii) provides for the dissolution of the marriage by a decree of divorce if there has been no restitution of conjugal rights for a period of one year or upwards after the passing of a decree for restitution of conjugal rights. The decree for restitution of conjugal rights was passed on 28. 1. 1981. Exhibit Al is the certified copy of the decree in OP 146 of 1980 on the file of the Subordinate judge, Karimnagar, granting the decree for restitution of conjugal rights. On the ground that there was no resumption of marital relations after the said decree for more than two years, the present OP was filed in March, 1983. The wife (appellant herein) filed a counter stating that the husband (respondent) did not make any efforts to take her back after the decree was passed and that the allegation that he has been persuading her to come and join him was wrong. It is also stated therein that the respondent married another woman and he has been living with her at Karimnagar. In the deposition before the Court, she maintained that the respondent did not come to her nor sent anybody requesting her to join him and stated that the husband was not interested in taking her back. She also stated that the respondent married a girl by name Dhanalakshmi.

(2.) THE lower Court held that the decree for restitution of conjugal rights was not complied with for more than one year and, therefore, in terms of Section 13 (la) (ii), a decree of divorce ought to be granted.

(3.) IT is an admitted case that there was no reunion between the appellant and the respondent after the decree for restitution of conjugal rights was granted on 28. 1. 1981. The OP for dissolution of marriage was filed more than two years after the decree for restitution of conjugal rights was passed. Though the decree was an exparte decree, it cannot be said that the appellant was unaware of the same because she filed an application to set aside the exparte decree in the year 1981 itself. The decree was initially set aside, but in the CRP, that order was reversed, thereby confirming the decree for restitution of conjugal rights. When such is the case, it was incumbent on the part of the appellant to take the lead to join the husband. Assuming that the husband's version that he went to her alongwith PW 2 to persuade her to come back to the martial home is unreliable, even then it does not absolve the appellant from the obligation to take initiative to join the husband in veiw of the decree for restitution of conjugal rights opera ting against her. In M. Suryakantham v. Ranga Rao, (1973) An. WR158, a Division Bench of this Court considered the scope of Section 13 (la) (ii) and repelled the contention that the failure of the respondent (husband in that case) to take any steps to enforce the decree for restitution of conjugal rights by filing an execution petition is riot a bar for maintaining the OP for annulment of the marriage under Section 13 (1 A) (ii) of the Act. The legal position has been laid down thus :