ATMA RAM Vs. KALA WATI

JUDGEMENT

(1.) Atma Ram appellant was married to Kalawati respondent in the year 1964. They lived together as husband and wife for a few years and a daughter was born out of this wedlock on 11-12-1966. Thereafter, Atma Ram allegedly deserted Kala Wati without any reasonable cause. Reconciliation proceedings between the parties could not take place. Atma Ram filed a petition under S. 9 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act) for restitution of conjugal rights which was decreed by the trial Court on 8-7-71. Appeal against the same was dismissed by this Court on 4-1-1973. Letters Patent Appeal filed by the wife was dismissed vide order dated 10-4-1973, Atma Ram then filed petition for a decree of divorce on 11-5-1977. Divorce was sought on the ground that the decree for restitution of conjugal rights obtained by the husband had remained unsatisfied due to non-compliance by the wife for more than two years.

(2.) In the written statement filed by the wife it was admitted that final decree for restitution of conjugal rights exists. However, it was alleged that the appellant entered into another marriage with one Malagri alias Muglalri, daughter of Sahi Ram of village Harkawala, (Rajasthan) on 17-6-1974, and, therefore the decree for restitution for conjugal rights could not be complied with. It was asserted that the husband could not take advantage of his own wrong in view of the provisions of S. 23 of the Act and thus the petition for divorce was liable to be dismissed.

(3.) On the pleadings of the parties, the following issues were framed by the trial Court:--