DR. RAKESH RANJAN Vs. DR. ANITA SOOD

JUDGEMENT

(1.) This appeal is by the appellant-husband against whom a decree of divorce on the ground of judicial separation, which was obtained by the respondent/wife in Civil Suit No. 35-A of 1984 decided on 27-1-1986, has been passed by the District Judge, Durg.

(2.) Briefly stated the facts of the case are that the appellant and the respondent were the students of Medical College, Jabalpur, the appellant being senior to the respondent by two years, when they fell in love with each other and got themselves married on 22-7-1978, without the consent and against the wishes of their respective parents since they belonged to different communities. The respondent/wife hails from Durg and at the relevant time was staying in the hostel of the Medical College, Jabalpur while the appellant claims himself to be the resident of Jabalpur, where he was residing with his parents and five unmarried sisters. It appears that after the marriage, the respondent/wife cohabitated with the appellant for about three to four days in the house of the appellant when the appellant left to join his duties at village Kanhwara in Katni Tahsil. The respondent remained in the house of the appellant thereafter for about 25 days when she was shifted to the hostel of the Medical College, Jabalpur for prosecuting her studies for M. D., since the accommodation in the house of the appellant was congested. It further appears that after completion of her post-graduate studies in Medicine, the respondent left the hostel without informing the appellant to join her duties at the hospital of the Bhilai Steel Plant at Bhilai. It may be stated that the parents of the respondent resided at Bhilai and since then, there has been no cohabitation between the appellant and the respondent though the appellant continued to write letters to the respondent and the last letter in reply was written by the respondent sometimes in the month of July, 1980 and thereafter there has been no communication between the parties. It is further seen that the appellant who was posted in village Kanhwara was transferred to village Dhamdha in the district of Durg sometimes in the month of Aug., 1980 where he remained up to the month of Jan., 1985 but during this period, there was no cohabitation between the appellant and the respondent. In the year 1984, the respondent initiated proceedings for divorce against the appellant at Durg, on the ground of cruelty and by judgment and decree dated 27-1-1986, in the said suit, namely Civil Suit No. 35-A/1984 the trial Court passed the decree for judicial separation instead of granting a decree for divorce as sought by the respondent. Thereafter it appears that the respondent filed appeal in this Court being First Appeal No. 81 of 1986 against the judgment and decree passed by the trial Court refusing to grant a decree for divorce. This appeal was filed on 24-3-1986 but the respondent withdrew it on 7-1-1987 and it was dismissed at such by this Court. On 24-3-1987, the respondent instituted proceedings for grant of divorce on the ground of judicial separation as there was no cohabitation between the parties after the grant of decree of judicial separation for one year. This petition was registered as Civil Suit No. 37-A/1987. At the time of the institution of this petition, the appellant was posted at Indore, having been transferred from village Ohamdha to Indore. It also appears that the respondent on 18-8-1987 amended the cause title to the effect that the address of the appellant was shown to be care of Shrimati Rita Shrivastava, sister of the appellant, residing at Durg. In the meanwhile the appellant] husband instituted proceedings for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act, against the respondent at Durg on 7-5-1987, which was registered at Civil Suit No. 62-A of 1987. It is pertinent to note that the address shown by the appellant was care of Shrimati Rita Shrivastava at Durg. These proceedings were, however, withdrawn by the appellant with leave to file a fresh suit. This was on 1-12-1987. After the withdrawal of this suit, the appellant filed an application under Sec. 10(2) read with Sec. 23-A of the Hindu Marriage Act for rescission of the decree of judicial separation at Durg on 18-12-1987. This suit was registered as Civil Suit No. 149-A of 1987. The trial Court by order dated 17-2-1988 ordered consolidation of this suit, namely Civil Suit No. 149-A/87 with Civil Suit No 37-A/1987 and common evidence was recorded and impugned decree of divorce was passed in favour of the respondent against which the present appeal arises.

(3.) In this appeal, the learned counsel for the appellant made three fold submissions, namely:-