KESHAV LAL GUPTA Vs. MAYA GUPTA

JUDGEMENT

(1.) THIS is an appeal under section 28 of the Hindu Marriage Act, 1955, (in short, the "Act"), by the husband against a decree for divorce granted on a petition filed under section 13 of the Act by the wife, coupled with a direction for return of articles and ornament or their value as per list attached with the petition.

(2.) IT was not disputed that the appellant was married to the respondent. The petition for divorce was based on the ground of cruelty and on a further ground of remarriage by the husband. The appellant denied the allegation!', but as he failed to comply with an order for payment of interim alimony made under section 24 of the Act, his right to defend the petititon was closed and a decree for divorce and return of articles and ornaments, or their price was passed after recording the evidence of the respondent. Being aggrieved, the husband has preferred this appeal. Having heard the learned counsel for the parties, I am of the view that the decree for divorce passed by the Court below after closing the husband's right to defend the claim for devorce on the ground of non -payment of interim alimony calls for no interference. As discussed in paragraphs 3 to 13 of the impugned judgment, there was sufficient material for holding that the husband had been giving cruel treatment to the wife and that he had also taken second wife. The decree for divorce is, thus, well founded.

(3.) IN the result, this appeal partly succeeds and it is hereby partly allowed. The decree for divorce is maintained, but that for return of articles and ornaments, or their price is set aside and the case is sent back to the Court below with a direction to decide the dispute afresh after affording opportunity to the parties to adduce their evidence. This means that the respondent shall be entitled to give fresh or additional evidence in support of her case and the appellant shall have a right to adduce evidence in rebuttal. In view of partial success of this appeal and looking to the nature of relationship between the parties, I make no order as to costs of this appeal. However, the costs as awarded by the Court below shall prevail and be paid by the husband to the wife.