MALKIAT SINGH Vs. SHINDERPAL KAUR

JUDGEMENT

(1.) Malkiat Singh, the husband, has filed the instant appeal against the judgment and decree dated 21-9-1999 passed by the Additional District Judge, Bathinda, vide which his petition for dissolution of marriage filed under Section 13(1-A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') against his wife Smt. Shinderpal Kaur, respondent-herein, was dismissed.

(2.) The brief facts of the case are that the marriage between the parties was solemnised on 22-5-1992 according to Hindu rites. Out of this wedlock, a male child was born. According to the appellant, in the year 1994 the respondent left his company without any reasonable cause or ground. She left the matrimonial home along with her child and went to the house of her parents. In spite of his repeated requests and persuasion, when she did not resume her matrimonial duty and returned back to her matrimonial home the appellant filed a petition under Section 9 of the Act for restitution of conjugal rights on 18-7-1995 against the respondent. The said petition was allowed by the Additional Civil Judge (Sr. Division), Phul, vide his order dated 23-5-1997. But despite the aforesaid decree of restitution of conjugal rights, the respondent did not resume his company and thereby she had failed to obey the said decree. The appellant further alleged that in spite of expiry of more than one year period after the said decree, the respondent has not resumed his company and actually she refused to resume his company. As such, the appellant alleged that he has left with no other remedy but to seek the dissolution of the marriage by filing the petition under Section 13 (1-A) (ii) of the Act, which he filed on 22-7-1998.

(3.) Pursuant to the notice issued to the respondent, she appeared and hotly contested the aforesaid petition. She admitted that she was legally married to the appellant on 22-5-1992; and that a petition under Section 9 of the Act was filed by her husband against her which was allowed in his favour on 23-5-1997; and that at present she has been residing along with her child in the parental house with her brother. But she denied the other material allegations levelled by the appellant against her. She pleaded that she herself did not left the company of the appellant. Rather, it was the appellant who treated and tortured her mentally as well as physically in a very cruel manner on one pretext or the other. In the month of March, 1994, she was kicked by her husband out of her matrimonial home. As such, it was the appellant who turned her out from her matrimonial home in a miserable condition on which she had to come to the house of her brother where she has been leading a miserable life. She further pleaded that after passing of the decree dated 23-5-1997, she made all efforts to persuade the appellant to allow her to reside with him and allow her to do her matrimonial duty in the matrimonial home. Her brother and the Panchayat members of the village also repeatedly persuaded the appellant to keep her and her child with him, but he did not allow her to resume his company. Moreover, after passing of the decree of restitution of conjugal rights, the appellant did not take any step to bring the respondent back to the matrimonial home. She further pleaded that the appellant was not interested to obey the order of the Court though the respondent was and is always ready and willing to resume the matrimonial duty and reside with him as his wife. As such, the appellant has no cause of action to file the petition for divorce under Section 13 (1-A)(ii) of the Act.