KIRPAL SINGH Vs. TEJ KAUR

JUDGEMENT

(1.) The present appeal under Clause X of the Letters Patent is directed against the judgment of Bains, J., dated May 6, 1976, whereby F.A.O. No. 100-M of 1973, filed by the appellant was dismissed and the order of the trial Court dismissing the petition for divorce under Section 13 (IA) of the Hindu Marriage Act, (hereinafter called the Act), was upheld.

(2.) The marriage between the appellant - husband and the respondent - wife was solemnised on March 24, 1963. After living together as husband and wife for some time, they began living separately. A petition under Section 9 of the Act, for restiution of conjugal rights was filed by the appellant which culminated into passing of a decree for restitution of conjugal rights in June, 1970. The husband filed the petition for a decree of dissolution of marriage on the ground that the decree for restitution of conjugal rights had not been satisfied by the wife for the prescribed period of two years. This was contested by the respondent. Inter alia, it was alleged that the appellant did not agree to resume matrimonial relations with her in spite of her efforts through a number of respectable persons and thus, he could not take advantage of his own wrong. Objection was also taken regarding the jurisdiction of the Court to try the petition and also regarding the maintainability of the petition. After the framing of issues, evidence was adduced on both sides. The trial Court in its judgment dated September 4, 1973 dismissed the petition holding that it was the appellant who was at fault for the non - resumption of cohabitation and the non - compliance of the decree for restitution of conjugal rights. The other contentions regardng jurisdiction and the maintainability of the petition were decided in favour of the appellant. This order was affirmed by the learned Single Judge. Hence this letters patent appeal.

(3.) According to the learned counsel for the appellant, there was no satisfactory evidence to warrant the conclusion that it was the appellant who was at fault for non-compliance and non - satisfaction of the decree for restitution of conjugal rights. This contention is not tenable. The trial Court after perusing the evidence produced on both sides, found the evidence of the appellant contradictory in material particulars and unconvicting. On the other hand, after closely perusing the statements of Arjan Singh, P.W.1 ; Gurnam Singh. R.W.2 and Tej Kaur, respondent herself as R.W.3, it was concluded that the respondent wast ready and willing to reside with her husband and thus complied with the decree for restitution of conjugal rights before the filing of the petition for divorce and had even expressed her willingness to resume the merital ties with the appellant even during trial. Due notice was also taken of the fact that the appellant had categorically stated in his statement that he was not live with the respondent in the matrimonial home and even disclosed that he will contract a second marriage after divorce. This finding of fact was also affirmed by the learned Single Judge after closely perusing the entire evidence on the record. In the letters paten appeal this concurrent finding of fact cannot be allowed to be assailed, nor can the same be reversed.