KALA WATI Vs. ATMA RAM

JUDGEMENT

(1.) A decree of divorce by dissolution of marriage under section 13 of the Hindu Marriage Act (hereinafter called the Act) has been passed against the wife, the appellant, in a petition filed by her husband, the respondent, by the Additional District Judge, Ferozepur, vide his judgment dated May 4, 1978. The present appeal is directed against the same.

(2.) According to the averments in the petition by the husband, both the appellant and the respondent were married on Suri 2, 2020 Bk., that is, in the year 1964. They lived together as husband and wife for a few years and a daughter was born out of the wedlock on February 11, 1966. Thereafter, the appellant deserted the respondent without any reasonable cause. As the efforts of the respondent to bring her back did not prove successful, a petition under section 9 of the Act, for restitution of conjugal rights was filed by the respondent which was decreed by the trial Court on July 8, 1971, a copy of which is Exhibit A-l. Appeal against the same was dismissed by the High Court on January 4, 1973, by an order a certified copy of which is exhibit A-2. The letters patent appeal against the same was dismissed by order dated April 10, 1973, Exhibit A-3. The petition for a decree of divorce was filed by the respondent on May 11, 1977. Divorce was sought only on the ground that the decree for restitution of conjugal rights obtained by the respondent had remained unsatisfied due to non-compliance by toe appellant for more than two years.

(3.) The appellant in her written statement contested the petition for divorce. The passing of the decree for restitution of conjugal rights was admitted However, it was specifically alleged that the respondent had entered into another marriage with one Malagri alias Muglairi, daughter of Girt Ram of Village Harkawala, Tehsil Padampur, District Ganganagar (Rajasthan), on June 17, 1974, after her letters patent appeal against the decree of restitution of conjugal rights had been dismissed by the High Court. It was on account of the said second marriage that the appellant could not take any steps to resume the matrimonial ties and comply with the decree for restitution of conjugal rights. In view of these circumstances, it was asserted that the respondent could not take advantage of his own wrong and the petition for divorce was not maintainable in view of section 23 of the Act. It was also averred that the respondent had not made any effort for restitution of conjugal rights. The respondent in his replication reiterated hit stand made in the petition. It had also been alleged by the appellant in her reply that she had made an application for maintenance under section 488, Code of Criminal, Procedure, but the same was dismissed on account of the decree for restitution of conjugal rights having been passed, but her daughter was allowed maintenance at the rate of Rs. 25/- per mensem.