NIRMALA RANI Vs. LACHAMAN DASS

JUDGEMENT

(1.) THIS appeal is directed against the decree of the District Judge, Hissar, dated 16th August, 1986, whereby the petition filed by the husband Lachhman Dass for divorce was accepted.

(2.) THE parties were married on 1st September, 1982. A male child was also born out of this wedlock. The wife withdrew from the society of the husband without any rhyme or reason on or about March, 1983. The husband tried to persuade her to join his company but she was adamant. He filed a petition for restitution of conjugal rights Under Section 9 of the Hindu Marriage Act in August, 1983 (Copy Ex. P1) but the same was dismissed as compromised on 25th October, 1983, on the assurance held out by her that she will come back to him. On her refusal to come back to him, however, he filed the divorce petition Under Section 13 of the Act which was dismissed as withdrawn upon the parties coming to terms before the Lok Adalat on 25th February, 1986. According to the husband, the wife did not keep her word and never came to reside with him as per the terms of the compromise. So, he was compelled to file the present divorce petition Under Section 13 of the Act on 28th April, 1986, on grounds of cruelty and desertion. The petition was contested on the ground that she had gone to the husband house in the wake of the compromise arrived at between the parties in the Lok Adalat but she was pushed out by the husband as he was not ready and willing to keep her with him as he always insisted on her to pay him costs for the judicial separation On the pleadings of the parties, the trial court framed the following issues:

(3.) AFTER hearing the learned Counsel for the parties I find force in the contentions raised on behalf of the Appellant. Admittedly, the petition Under Section 9 for restitution of conjugal rights was compromised on 25th October, 1983. Subsequent petition Under Section 13 for divorce was also compromised on 25th February, 1986. There is no cogent evidence on record to prove that there was desertion for a continuous period of two years before the presentation of the present petition on 16th April, 1986. The earlier desertion, if any, was condoned by compromising both the petitions. It could not be successfully argued on behalf of the husband that there was no forgiveness on the part of the husband when he compromised the petition The compromise presupposes forgiveness on the part of both the parties. As regards the restoration, the evidence is conflicting and, therefore, it could not be successfully argued that the parties continued as such when they parted last in March, 1983 Under these circumstances, this petition is liable to be dismissed on the short ground that the husband had failed to prove desertion for a continuous period of less than two years immediately preceding the presentation of the petition. Consequently, the appeal succeeds, the decree of the trial court is set aside and the petition for decree Under Section 13 is dismissed as premature, with no order as to costs.