ANIL KUMAR CHOPRA Vs. INDIRA DEVI

JUDGEMENT

(1.) The appellant filed a suit paying a decree of divorce against his wife Smt. Indiradevi (respondent) on the ground that she was guilty of deserting him for more than the statutory period. The trial Court dismissed the suit and, therefore, husband has preferred this appeal.

(2.) Necessary facts are that the parties were married on 16-6-1975 according to Hindu rites. Somehow, after two years differences arose and the respondent took up a job of teacher at Guna and according to the appellant, is living there since 16-2-1977. The appellant alleges that all his efforts to bring her back and restore conjugal relations failed. He tried to get her transferred to Hoshangabad where he lived. She was transferred to a place near Hoshangabad but the respondent did not join the place of her transfer, indicating thereby that she wants to live away from the appellant. On 12-2-1977 a panchayat was convened at Hoshangabad to amicably settle the differences but nothing useful turned out. The appellant moved the Court for a decree of divorce in the year 1977 but that petition was dismissed as premature. The appellant again filed a petition for the same purpose in the year 1979. That was decree ex parte on 13-7-1979. That decree, however, was set aside and then the suit itself was dismissed in default. The appellant thereafter sent his brother-in-law G.K. Bakshi (A W. 2) to fetch back the respondent. The respondent, however, remained adamant and did not join the appellant. The appellant, therefore, concludes that the respondent has withdrawn from his society for good and intending to put co-habitation at an end. On these grounds the appellant founded his case for decree of divorce.

(3.) The suit was resisted by the respondent on the ground that she was ill-treated at the hands of the appellant. She charged the appellant of cruelty and misbehaviour. It was also alleged that the suit was barred under Order 9 Rule 9 of the Civil Procedure Code and that no case of desertion was made out. She attempted to justify the separation alleging cruelty on the part of appellant. The lower Court dismissed the suit principally on the ground that it was barred under Order 9 Rule 9 of the Civil Procedure Code because of the dismissal of the earlier suit in default. It also held that the desertion according to law was not proved.