BALABHADRA PRADHAN Vs. SUNDARIMANI DEVI

JUDGEMENT

(1.) This appeal arises out of a suit for dissolution of marriage between the parties by a decree for divorce under Section 13 of the Hindu Marriage Act, 1955 (in short, 'the Act'). Admittedly, the parties are Hindus and the appellant is the husband of the respondent, their marriage having been solemnised according to Hindu custom and rites in February, 1987. After the marriage they lived together as husband and wife peacefully for a period of three months in the house of appellant's brother in Puri town. Thereafter, the appellant-husband went away to Durgapur in the State of Madhya Pradesh where he was working as Sepoy in the Central Industrial Security Force attached to the steel plant. The respondent-wife went away to her parents' house which was also situated in Puri town at a very small distance from the house of the brother of the appellant. It is alleged by the husband that attempts were made to bring back the wife but the same having proved abortive, he had to institute O.S. No. 29 of 1979(1) in the Court of the Subordinate Judge, Puri for restitution of conjugal rights under Section 9 of the Act on the ground that the wife had wilfully deserted him without any lawful excuse. The said suit was disposed of on 16-4-1980 decreeing the suit with a direction to the wife to join the husband without fail. Even after passing of the decree the wife having not joined the husband, the latter filed Original Suit No. 54 of 1981(I) in the Court of the Subordinate Judge, Puri for dissolution of the marriage by a decree of divorce. The wife resisted the suit contending, inter alia, that she was ill-treated by her husband's brother's wife for which it was impossible on her part to live in that house and that she was willing to join her husband, if she was taken to his place of service at Durgapur. The learned Subordinate Judge trying the suit came to hold, on the basis of the evidence on record, that the wife's plea of ill-treatment by her husband's brother's wife was not correct and that since the wife had not resumed marital life with the husband even after passing of the decree for restitution of conjugal rights and her alleged-willingness to join the husband was a myth, he decreed the suit. Being aggrieved by such judgment and decree, the wife preferred appeal which, on transfer to the file of the Addl. District Judge, Puri, was registered as T.A. No. 87/26 of 1983/82. The learned Addl. District Judge came to hold that since the wife was alleging ill-treatment at the hand of her husband's brother's wife, the husband was obliged to either take her to his place of posting at Durgapur or to keep her in their ancestral house in Puri town and he having not done so the wife was justified in not obeying the direction in the decree for restitution of conjugal rights. With these findings, he allowed the appeal and thereby set aside the judgment and decree passed by the learned Subordinate Judged Puri. Being aggrieved by such judgment and decree, the present appeal has been filed.

(2.) Mr. B. B. Mohanty, the learned counsel for the appellant has raised one contention, the same being that after passing of the decree for restitution of conjugal rights, the wife having not, obeyed the decree for restitution of conjugal rights for more than a year, the husband was entitled to the dissolution of the marriage by a decree of divorce under Section 13 (1-A) of the Act. According to the learned counsel, there was no scope for the learned Addl. District Judge to embark on an inquiry whether there was reason for the wife not to obey the decree for restitution of conjugal rights. On the other hand, Mr. U. K. Samal, Advocate appearing on behalf of Mr. R. K. Mohapatra, the learned counsel for the respondent urges that the petition for divorce was premature having not been filed after one year from the date of passing of the decree for restitution of conjugal rights. It is further urged by him that the husband was wrong in not finding out an alternative residence for the wife to live and accordingly he was not entitled to the relief of divorce under Section 23(1) of the Act. In view of these rival contentions, the points that arise for consideration are:-

(3.) For a decision on the first point, it is necessary to refer to clause (ii) of sub-section (l-A) of Section 13 of the Act which is as under-