ANUKUL KUMAR GHOSH Vs. CHHANDA GHOSH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 28th November, 1984 in Matrimonial Suit No. 14 of 1984 whereby the learned Additional District Judge, 2nd court, Alipore, 24-Parganas dismissed the suit filed by the appellant-husband against the respondent-wife. The brief facts leading to the filing of the suit are that the appellant and the respondent were married on 4th July 1973 accordingly to Hindu Rites. Right from the date of their marriage, the relation between the spouses became strained and estranged resulting in the appellant filing a suit for divorce under section 13 of the Hindu Marriage Act in 1976. This suit however was dismissed in 1978. On 26th November 1982, the appellant obtained a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act against the respondent. Even though this decree was passed expert, the respondent undoubtedly had the knowledge of the passing of the decree because she filed an application under section 25 of the Hindu Marriage Act and obtained an order of permanent alimony and maintenance from the court, which had passed the aforesaid decree.

(2.) After the expiry of more than one year from the date the aforesaid decree under section 9 was obtained by the appellant, the appellant filed a suit for divorce on the ground contained in section 13(1-A)(ii) of the Hindu Marriage Act alleging that there has been no restitution of conjugal rights as between the parties for a period of one year and upwards after the passing of the decree for restitution of conjugal rights on 26th November, 1982 and therefore the appellant was entitled to the decree for divorce. The learned court below however dismissed the suit primarily and mainly on the ground that the appellant did not make any attempt to get the respondent back or to resume cohabitation and that in order to obtain a decree for divorce by dissolution of the marriage interims of section 13(1-A)(ii), the appellant had to satisfy the court that he necessarily wanted to live together and resume cohabitation with the respondent and that his sincerity and desire could not be fulfilled because of the refusal on the part of, or non-compliance of the order for restitution of conjugal rights by the respondent. The learned court below also referred to a judgment or this court in the case of Smt. Kanak Lata Ghosh v. Amal Kumar Ghosh reported in AIR 1970 Cal 328 and another judgment of this court in the case of Sm. Mita Gupta v. Prabir Kumar Gupta reported in AIR 1989 Cal 248 (corresponding to 93 CWN page-50).

(3.) Section 13(1-A)(ii) in so far as it is relevant for this purpose is reproduced below: