SANTOSH KUMARI Vs. MOHAN LAL

JUDGEMENT

(1.) This appeal has been filed by Smt. Santosh Kumari against the judgment of the District Judge, Ferozepur dated April 9, 1980, by which a decree for divorce has been passed against her.

(2.) Briefly the facts are that the marriage between the parties was solomnised on September 24, 1966 at Zira District Ferozepur. It is alleged that Smt. Santosh Kumari, wife withdrew from the society of Mohan Lal, her husband, with effect from October 1972 without any reasonable excuse. He filed an application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act'). The application was dismissed by the trial Court. The husband came up in appeal against the judgment to this Court. The case was listed before C.S. Tiwana, J. and the learned Judge accepted the appeal on September 11, 1978 and held that the wife had been staying away from the society of the husband without sufficient and reasonable excuse. (The case is reported as Mohan Lal v. Santosh Kumari, 1978 Revenue Law Reporter 573. The husband, thereafter, filed an application for divorce under Section 13 of the Act on the ground that there had been no restitution of conjugal rights between the parties and, therefore, he was entitled to a decree of divorce.

(3.) The application was contested by the wife. She stated that the real intention of the husband in filing the application for restitution of conjugal rights was to prepare a ground for divorce and that is why after obtaining the decree for restitution of conjugal rights he did not take any steps to execute the decree. It is further stated that she and her father requested him many times to accept her but he refused to do so. Ultimately, she filed an execution application under Order 21, Rule 32 of the Civil Procedure Code in the Court of Sub-Judge Ist Class, Zira, on august 17, 1979 for restitution of conjugal Rights. The Subordinate Judge issued notice to the husband and recorded his statement wherein he stated that he was not prepared to take the respondent. The Court, in view of the statement, dismissed the application on September 27, 1979. she filed a revision petition in the High Court at Chandigarh against that order which had not been decided. (The revision petition has since been disposed of on March 21, 1980 by me and the case is reported as Santosh Kumari v. Mohan Lal,1980 CLJ 240. She further pleaded that judgment will be binding on the parties and, therefore, that application was liable to be stayed. She further averred that the husband was seeking divorce mainly on the ground of non-compliance of the decree for restitution of conjugal rights on her part whereas he himself was at fault and guilty of non-compliance of the decree. She also raised a plea that the judgment of the Subordinate Judge in the application under Section 9 of the Act was correct. On the pleadings of the parties, the following issues were framed :-