BIJAYA LAKSHMI KUNDINGI Vs. KAMALA LOCHANA KUNDINGI

JUDGEMENT

(1.) This Second Appeal has been preferred by the appellant-wife against the confirming judgment. The appeal was admitted by this Court on the following substantial question of law :

(2.) In order to appreciate the respective cases of the parties, it is necessary to narrate the facts of the case which are follows : The appellant-wife had married the husband respondent according to the Hindu Customs and Rites in the year, 1976. Being ill-treated by the husband and having discovered that the husband has developed illicit relationship with one B. Varalaxmi, when she objected to such action of the husband, the husband having deserted the wife without any reasonable cause by withdrawing himself from the conjugal society of the wife, she filed O. S. No. 8 of 1987 before the learned Civil Judge (Senior Division), Parlakhemundi under Section 9 of the Hindu Marriage Act, 1956 for restitution of conjugal rights. By order dated 12-9-1988 passed in the said suit, the husband was directed to pay the maintenance at the rate of Rs.75/- per month to the wife with effect from October, 1988 apart from the litigation expenses of Rs. 150/-. Original Suit No. 8 of 1987 was decreed in favour of the wife granting relief of restitution of conjugal rights on contest on 19-1-1990, directing the husband to join the appellant wife. It appears from the record that the husband having taken no steps to comply with the direction given in the above decree, the wife filed Execution Case No. 9 of 1991 to execute the said decree for restitution of conjugal rights. It, however, appears, that before the said decree was executed, the husband after lapse of more than a year from the date of decree for restitution of conjugal rights, filed Title Suit No. 12 of 1991 praying for a decree for dissolution of marriage by way of divorce under Section 13(1-A) (ii) of the Hindu Marriage Act, on the ground that even after lapse of one year there has been no reunion between the parlies pursuant to the decree for restitution of conjugal rights. After filing of the suit, the husband on filing a memo before the Executing Court, to drop the execution proceeding as not maintainable, the Executing Court dismissed the said execution proceeding by its order dated 22-7-1992 against which the wife preferred Civil Revision No. 62 of 1992 before the learned District Judge, Berhampur. The said civil revision was ultimately dismissed as infructuous on the ground that the suit for dissolution of marriage and divorce i.e. T. S. No. 12 of 1991 having been decreed in favour of the husband, the said revision has become infructuous.

(3.) The husband respondent's case in the plaint, inter alia, was that the appellant is his legally married wife. The marriage was consummated between them and they begot one son, namely, Dilleswara Kundingi in 1980 and one daughter, namely, Mukta Manjari Kundingi in 1982. The wife who was the respondent in the suit withdrew herself from the conjugal society of the husband in the year, 1984 without any cause or reason as she suffered from Psychiatric disorder and became physically and mentally cruel towards the husband, abused him in filthy language, assauited him etc. and drove him out from the Municipal quarters in the Municipal Colony near Shree Krishna Talkies in 1984 and she deserted him without any fault on the part of the husband. Thus, there was no conjugal life or co-habitation between the parties since 1984. The further case of the husband is that the appellant wife filed OS No. 8 of 1987 for restitution of conjugal rights, to harass the husband which was decreed on 9-1-1990 since there was no reunion for more than one year from the date of passing of the decree, he is entitled to a decree for divorce by dissolving the marriage between the parties.