DULICHAND Vs. UMA DEVI

JUDGEMENT

(1.) THIS is a Letters Patent Appeal directed against judgment and order dated 20. 4. 1989 of the learned Single Judge in F. A. No. 122 of 1988 reversing the finding of the Trial Court which granted a decree of judicial separation on the ground of desertion by judgment dated 5th May, 1988.

(2.) BRIEF facts giving rise to this appeal are that appellant Dulichand is the husband of respondent Smt. Uma Devi. They were married in 1975 and in the wedlock, two children were born. An application under Section 13 of the Hindu Marriage Act was filed by the appellant-husband on the ground that they were not living together since 1978. The appellant, therefore, prayed for a decree of divorce on the ground of desention as well as cruelty. Learned Trial Judge, however, did not grant decree of divorce of marriage but passed a decree for judicial separation on the ground of desertion after recording the evidence of the parties. Learned Trial Judge found that the respondent-wife was not willing to go and reside with her husband. In that connection, the learned Trial Judge examined AW 1 Dulichand (appellant) and AW 2 Hari Narayan, though he did not rely on the statement of Dulichand. After concluding the trial, the learned Trial Judge granted a decree of dissolution of marriage. The learned Trial Judge also recorded a finding that all attempts made on 3. 5. 1988 for reconciliation failed and accordingly a decree of dissolution of marriage under Section 13-A of the Hindu Marriage Act was passed.

(3.) AGGRIEVED by the judgment of the learned Trial Judge, the respondent - Uma Devi filed an appeal before this Court. This Court disposed of the said appeal by judgment dated 20. 4. 1989. The learned Single Judge also called both the parties for reconciliation and it appears that the appellant/husband was not willing to take the wife with him and declined to reconcile. Learned Single Judge, however, without referring to the evidence of the witnesses came to the conclusion that on the basis of evidence of Dulichand as a whole, no ground for dissolution of marriage is made out and allowed the appeal of the wife and set aside the decree of dissolution of marriage granted by the Trial Court. Hence, this appeal.