KAMLESH KUMARI Vs. KARTAR CHAND DIWAN SINGH

JUDGEMENT

(1.) THIS is an appeal of the wife against the dismissal of her petition for dissolution of marriage made under S. 13 of the Hindu Marriage Act, 1955.

(2.) THE parties were married in August 1955. On 6th December 1956, the husband filed a petitioner for obtaining a decree for restitution of conjugal rights which was granted in favour of the husband on 23rd May, 1957. In July 1959, the wife filed the petition out of which the appeal has arisen seeking dissolution on the ground that the husband had failed to comply with the decree for restitution of conjugal rights for a period of more than two years after the passing of the decree, and that he did not want to maintain the appellants as his wife and in order to avoid payment of maintenance allowance he had obtained the decree for restitution of conjugal rights which he never got executed through Court or through the Panchayat. The husband raised the plea that it was not open to the wife to seek dissolution of marriage under clause (ix) of sub-section (1) of S. 13 of the Act as it was she who had failed to comply with the decree. The point that at once arose for consideration was whether, when the husband had obtained the decree for restitution, it was open to the wife to seek dissolution under clause (ix) of S. 13 (1) of the Act on the ground that it was the husband who had never executed that decree and had taken no steps to obtain restitution and was, even otherwise, unwilling to allow the wife to come and live with him. The learned trial Judge has answered that question against the wife and that is now the present appeal has been brought to this Court.

(3.) SECTION 13 of the Act which gives the grounds for divorce contains provisions for passing a decree for dissolution in cases where a decree for judicial separation has been passed as also where a decree for restitution of conjugal rights has been passed.