GURMAIL KAUR Vs. GURMEL SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the Additional Senior Sub-Judge, Moga whereby petition under Section 9 of the Hindu Marriage Act (for short 'the Act') filed by the husband, namely, Gurmel Singh, has been allowed.

(2.) Parties to the appeal were married according lo Anand Karaj Ceremony on 15.6.1975 in Village Chand Nawan, Tehsil Moga. They cohabited as husband and wife and out of this wedlock, two children i.e. one female and one male, were born on 24.9.1976 and 22.7.1978 respectively. Both the children are living with the appellant. In this appeal, it has been contended by the learned Counsel for the appellant that the decree under Section 9 of the Act has become redundant inasmuch as during the pendency of the appeal,-respondent Gurmel Singh has filed a petition under Section 13 of the Act for dissolution of marriage through a decree of divorce on the ground of desertion and cruelty-

(3.) A pointed reference has been made by the Counsel to the statement dated 24.2.1994 made by the respondent in proceedings under Section 13 of the Act where in- he has stated that in view of the litigation launched by the appellant against him, he is not prepared to keep her with him. Reference has also been made to the statement dated 24.2.1994 made by appellant Gin-mail Kaur in die said proceedings wherein she has stated that she had been living with two children in the same house of the respondent and a partition wall has been raised in the half portion. In the half portion, she is living with the children while in the other half portion, respondent is residing. She has also stated that she is prepared to live with the respondent but the respondent is not ready and willing to keep her. Against this, the learned Counsel for the respondent argued that once a right has accrued to the respondent on the basis of decree under Section 9 of the Act, the right cannot be defeated by holding that decree under Section 9 of the Act has become redundant. The learned Counsel also contended that during die pendency of proceedings under Section 8 of the Act, appellant never showed his willingness to live with the respondent. Rather a finding was recorded by the Trial Court that she was willing to reside with her husband.