RAKESH DHARAMDAS RAI Vs. LATA ALIAS SHAKUNTALA RAI

JUDGEMENT

(1.) THIS appeal is directed by the petitioner husband under Section 28 of the Hindu Marriage Act, 1955, in short "the Act", being aggrieved by the judgment and decree dated 11-3-05 passed by the District Judge, Tikamgarh in hindu Marriage Case No. 76-A/2003 whereby his petition filed against respondent-wife under Sections 13 (1) (ia) and 13 (1a) (ii) of the Act for decree of divorce on the grounds of cruelty and of non-compliance the decree for restitution of conjugal rights has been allowed for judicial separation under section 10 of the Act, contrary to the prayer made in the petition.

(2.) THE facts giving rise to this appeal in short are that the appellant herein filed the aforesaid petition contending that on 18-6-1998 he got married with the respondent in accordance with rites and rituals of the Hindu community. Then the appellant was educated unemployed person while the respondent being Shiksha Karmi in education department was earning rs. 3200/- per month. Initially she resided with the appellant in matrimonial home for 4-5 days and left the same without any sufficient cause for her parental home, Damoh. Thereafter she used to visit the matrimonial home only 5 to 6 days at the interval of 6-7 months and lastly she visited and left the matrimonial home alongwith her ornaments and articles on 30-5-2000 saying that she will come back very soon. But she did not turn up, on which he wrote her various letters calling her back and also visited her parental home to bring her back but she did not come. As per further averments while residing in the matrimonial home the respondent deprived the appellant from the enjoyment of marital life and during that period her behaviour was also cruel with the appellant and family members. Apart this she deprived the appellant to enjoy the marital relations. On the contrary she was used to reside freely with her maternal uncle in some relations. She also threatened the appellant to kill him and his family members or involving them by fabricating some false criminal cases. In addition, it is pleaded that earlier he filed a petition under Section 9 of the Act. The same was allowed and decree for restitution of conjugal rights was passed against the respondent on 12-7-2000 by II Additional District Judge, Tikamgarh in Civil original Suit No. 45-A/2000. In spite such decree the respondent did not turn to the matrimonial home to perform the marital duties, thereby she committed cruelty with the appellant. In such premises, the prayer for dissolution of the marriage is prayed.

(3.) IN the written statements of the respondent by admitting the factum of marriage, it is stated that subsequent to marriage she was ousted from the matrimonial home by the appellant saying that she should not come again. Thus, under compulsion she is residing with her parents but still she is ready and willing to go and reside with the appellant to perform the martial duties. While residing in the matrimonial home she was always subjected to harassment and cruelty with beatings by the appellant and his parents. In such premises, the prayer for dismissal of the petition is made.