RAJESH Vs. RUKMANI

JUDGEMENT

(1.) This L.P.A. is directed against the judgment passed by learned single Judge on 28-11-1997 in F. A. No.190/1996 whereby the judgment and decree dated 7-8-1996 passed by 9th Additional Judge to the Court of District Judge in Hindu Marriage Case No.833/91, was confirmed.

(2.) It is not in dispute that on 29-4-1956 the appellant married the respondent at Indore according to Hindu rites and a son named Apurva was born as a result of this wedlock. Since 1963 the spouses are living separately. The respondent wife was living with her son Apurva aged 39 years at her parent's house.

(3.) On 11-10-1991, the appellant filed petition u/s13(1) (1-a) of the Hindu Marriage Act,1955 (For short 'the Act') for grant of decree of divorce on the ground that the respondent wife has deserted the petitioner for a continuous period of more than two years. The respondent resisted the case and averred that she never deserted the appellant; on the contrary she was ever willing to cohabit with him. The learned Trial Judge after appreciation of evidence held that the respondent had deserted the appellant but refused decree of divorce under Sec.23(1) (b) of the Act on the ground that there has been unnecessary and improper delay in instituting the proceeding. The appellant filed F.A. No. 190/96. It was dismissed by learned single Judge of this Court. However, he did not agree with the trial Judge that the respondent had deserted the appellant. He held that it was the appellant who had deserted the respondent in the year 1963. He confirmed the finding of the trial Court that the petition was filed with unnecessary and improper delay. The appellant is challenging this judgment in this L.P.A.