NANDKISHORE Vs. PARWATIBAI

JUDGEMENT

(1.) THIS appeal under section 28 of the Hindu Marriage Act, 1955 is by the husband against the decree, dated, 5 -3 -1964, passed by Shri J.N. Bajpai Second Additional District Judge, Dhar, in Civil Suit No. 11 -A of 1962, refusing the appellant relief of judicial separation from the wife.

(2.) THE parties were married some time in the year 1938. They lived together peacefully till 1946. They have also a son by name, Badri, who at the time of the suit was aged about 18 years. The respondent left her husband's house in the year 1946 and instituted proceedings under section 488, Criminal P.C. for maintenance in the year 1948. The Criminal Court fixed a maintenance allowance payable to her at the rate of Rs. 13 per month. As the same was not paid by the appellant, the respondent had to institute proceedings for recovering the same. During the pendency of those proceedings, the appellant filed Civil Suit No. 63 of 1949 for restitution on conjugal rights which was however, dismissed by the Munsif, Dhar on 28 -7 -1951. The appellant in the year 1954 married a second time; and since then he is living with the second wife. The present proceedings for judicial separation were instituted on 6 -8 -1962.

(3.) THE respondent denied the plaintiff's allegations and alleged ill -treatment and beating. According to her, she had not deserted her husband, but he was refusing to allow her to stay with him. As the appellant avoided his responsibility for maintaining her, she had to institute proceedings for getting maintenance allowance. It was also alleged that the findings in the previous suit for restitution of conjugal rights would operate as res judicata. In her special pleading, she alleged that the present suit had been filed mala fide in order to nullify the effect of the order of maintenance and that the suit itself is belated. She also made an offer that if the appellant agreed to keep her in another house along with the children, she was willing to stay with him. But she was not prepared to stay in the same house as her co -wife.