KIRAN BAI Vs. KISHAN PRASAD

JUDGEMENT

(1.) This is the wife's appeal against the trial Court's Judgment and Decree of divorce under Sec. 13 (1-A) (ii) of the Hindu Marriage Act.

(2.) Parties mere lawfully married according to Hindu rites and customs in May, 1978. The respondent-husband had later filed a petition against the wife under Sec. 9 of the Hindu Marriage Act, for restitution of conjugal rights on the ground that she had deserted his company. The husband lost in the trial Court, but the appellate Court, viz, this Court, allowed his appeal and granted the decree for restitution of conjugal rights in his favour, vide Judgment dated 30-4-81 (Ex. P. 1). The husband finally filed the suit under Sec. 13 (1-A) (ii) of the Hindu Marriage Act on 26-8-82, claiming decree for divorce on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of more than one year after the passing of earlier decree for restitution of conjugal rights, despite the fact that the husband had made efforts to bring back his wife. The wife, the present, appellant, contested the claim on the ground that she was ever ready and willing to go back to her husband after the High Court's Judgment, granting decree for restitution of conjugal rights. but the husband himself never cared to take her back to his house, although she had equally stated this fact regarding the willingness in the proceedings under Sec. 125 Cr. P.C. The trial Court found the oral evidence on both sides equally balanced and not of the nature that the evidence of the one side could be relied on in preference to the other side. The trial Court, however relying on 1977 M. P. Weekly Notes Part I Note No. 533 Ramkali Vs. Ganesh Prashad , held that the wife had failed to comply the earlier decree for restitution of conjugal rights during the prescribed period, and as such, the husband was entitled to the decree for divorce under Sec. 13 (1-A) (ii) of the Hindu Marriage Act. Accordingly, the husband's claim was decreed, and hence now, the wife's present appeal.

(3.) The learned counsel for the appellant-wife has urged that the trial Court was wrong in decreeing the husband's claim for divorce despite the clear proof that the husband had not taken any steps, whatsoever, for bringing back his wife . It is stated in this regard that the husband was at fault and not the wife. It is further urged that the trial Court has not appreciated the dictum as laid down in the ruling cited, in the matter of the wife's willingness. It is also urged that the trial Court has failed to consider the factum of wife's willingness to live with husband, as had been stated in her application in the proceedings under Sec. 125 Criminal Procedure Code. The learned counsel for the respondent-husband has supported the trial Court's Judgment in to to and has reiterated the reasoning already adopted by the trial Court.