AMARSINGH Vs. KIRANBAI

JUDGEMENT

(1.) APPELLANT/petitioner has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 30. 4. 1996 in Hindu Marriage Case No. 142/95 passed by IXth Additional District Judge. Indore dismissing the petition filed for divorce under Section 13 (i) (ia) (ii) of the Hindu Marriage Act.

(2.) ADMITTED facts of the case are that marriage in between the appellant and the respondent was performed on 18. 5. 1975 according to the Hindu rites and customs at Indore and they have a son Pratapsingh, who is living with the respondent/wife. It is also not in dispute that the appellant had filed a petition (No. 17/89) for divorce on the ground of adultry and it was dismissed in default of appearance of the appellant. Thereafter, the respondent has filed an application for restitution of conjugal rights and in that petition the appellant has prayed for divorce from the respondent. That the learned Trial Court has dismissed the petition for restitution of conjugal rights and the prayer of divorce was allowed. It is also not in dispute that Appeal (No. 45/87) was filed before the High Court of M. P. at Indore and the High Court has set aside the decree of divorce and the petition filed by the respondent for restitution of conjugal rights was allowed vide judgment dated 25. 10,1993. It is also common ground that after passing of the decree on 25. 10. 1993 there was no restitution of conjugal rights between appellant and the respondent; that the appellant sent a registered notice dated 22. 3. 1995 to the respondent for the divorce on the ground that the restitution of conjugal rights has not taken place even after one year of the passing of the decree to that effect, This fact is also not in dispute that the appellant and the respondent ar living separately from 25. 4. 1980.

(3.) THE case of the appellant/petitioner is that there was no restitution of conjugal rights for more than one year in spite of passing of the decree to that effect on 25. 10. 1993; that the respondent is living separately from the appellant from more than 16 years and the marriage in between the appellant and the defendant has become dead and irretrievable and as such the marriage be dissolved by a decree of divorce under Section 13 (1) (1a) (ii) of the Hindu Marriage Act.