BALDEV KAUR Vs. AVTAR SINGH

JUDGEMENT

(1.) The appellant Smt. Baldev Kaur got a decree for restitution of conjugal rights against the respondent on December 1, 1912. She instituted proceedings to execute this decree which were concluded on June 6, 1973. The present petition was filed by Avtar Singh respondent on 16th July, 1979, for a decree of divorce on the ground that in spite of the decree for restitution of conjugal rights, the parties have never resumed cohabitation.

(2.) The petition was opposed by the wife on two grounds, that there had been a resumption of cohabitation between the parties and it was only in the year 1978, that she had been again retuned out from the matrimonial home and that it was the respondent who failed to resume cohabitation and as such he cannot take advantage of his own wrong and claim divorce on the basis of the decree. The trial Court after recording the evidence held that there was no resumption of cohabitation since the decree of conjugal rights. Further relying on a Full Bench decision of this Court in Smt. Bimla Devi v. Singh Raj, 1977 AIR(P&H) 167it held that failure on the part of the husband to comply with the decree did not involve the violation of section 2341)(a) of the Hindu Marriage Act and consequently granted a decree of divorce vide judgment dated May 23, 1980. Feeling aggrieved the wife has come up in this appeal.

(3.) At the outset R.L. Sarin, learned counsel for the appellant, contended that as the respondent had failed to pay the maintenance amount since November, 1980, this appeal may not be heard and postponed till the said amount is paid. The learned counsel for the appellant could not disclose the source of this assertions Mr. S.P. Gupta, learned counsel for the respondent should also ignorance regarding this rent but he was under taken to make the payment of the arrears according to the order of this Court dated November 5, 1980, if any, by the end of this month. There is consequently no such default on the pert of the respondent for which the hearing of the appeal should be postportd and the decisions relied on in Smt. Malkan Rani v. Krishan Kumar, 1960 62 PunLR 575 and Dr. Tarlochan Singh v. Smt. Mohinder Kaur, 1963 AIR(P&H) 249 have no application to the present situation.