JANKI DASS Vs. SHANTI

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against judgment dated 23. 9. 1987 of the learned Single Judge whereby first appeal from the decree of the court of Additional District Judge, Jind rejecting the petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage by decree of divorce, has been dismissed.

(2.) THE marriage between the parties took place 18-20 years prior to the date of filing of the divorce petition by husband, which was instituted on 4. 2. 1985. Out of the wedlock, three children; two sons and one daughter, were born. Appellant filed petition under Section 13 of the Act for dissolution of the marriage by decree of divorce on the ground that respondent treated the appellant with extreme physical and mental cruelty and that his life as also the life of other members of his family is not safe in her hands. On contest, the learned Additional District Judge, Jind, dismissed the petition and first appeal filed against the judgment of Additional District Judge too came to be dismissed by this Court. Hence, the present Letters Patent Appeal.

(3.) AFTER hearing the counsel and going through the record, we are of the view that there is no merit in this appeal. It is settled that before the relief of divorce on the ground of cruelty is granted, it must be proved that the act of cruelty has not been condoned. Condonation in general parlance is forgiveness of the misconduct of the respondent, but it is technical expression under the matrimonial law,. The Apex Court in Dr. N. G. Dastane v. Mrs. S. Dastane, A. I. R. 1975 S. C. 1534, has held that condonation has two elements: (i) waiver of a matrimonial proceedings, and (ii) reinstatement of the guilty person to the earlier matrimonial status. Both must co-exist. In the present case, on a reading of the plaint we find that prior to the filing of petition under Section 13 of the Act, appellant had filed a petition under Section 9 of the Act for restitution of conjugal rights which was ultimately decided as having been compromised on 6. 9. 1984. It is categorically averred in the plaint that on the basis of the compromise, the appellant kept the respondent with him after forgiving her cruel acts, meaning thereby all acts of cruelty before 6. 9. 1984 were condoned. The only allegations after 6. 9. 1984 are contained in paras 5 and 6 of the plaint. They read as under :"