OM PARKASH Vs. SARESHTA DEVI

JUDGEMENT

(1.) Appellant has come up in appeal against the judgment and decree of District Judge, Hamirpur, dated 31/10/1987 dismissing his peti-tion seeking to have the marriage dissolved by a decree of divorce.

(2.) The parties to the petition are working as teachers. They were married on 21/11/1968, but there is no child of this marriage. The parties could not pull on together despite the fact that efforts were made to have the matter reconciled. Ulti-mately, the appellant on 14/11/1983 filed a petition under S. 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') praying for a decree for Restitution of Conjugal Rights against the respondent. It is not disputed that on 9/01/1985 the said petition was dismissed as not pressed. On the same day an application under S. 13B(1) of the Act was moved jointly by the parties seeking to have the marriage dissolved by a decree of divorce by mutual consent. Copy of the said petition is Ex.P1. While presenting the petition parties made their respective statements that they wanted divorce, copies of such statements are Ex.P2 and Ex.P3. The Court adjourned the petition for 1/08/1985. Before the next date, the respondent, by putting in appearance, expressed her desire to withdraw the petition stating that she filed the application under some duress from her hus-band. The Court permitted the application to be withdrawn. Resultantly Court did not grant the divorce. The matter was carried by the appellant to this Court by way of civil revision and an appeal. The order passed by District Judge was set aside and case remand-ed for fresh decision. The said petition was ultimately dismissed. Again the husband pre-ferred an appeal to this Court, which was allowed and decree of divorce by mutual consent was granted. This time the wife felt aggrieved and took the matter to the Supreme Court. Her Civil Appeal No. 638 of 1991 was allowed by the Supreme Court on 7-2-1991 (Sureshta Devi v. Om Prakash, 1991(1) Hindu Law Reporter 467 : (AIR 1992 SC 1904)), in which it was held that it is open to a party to a petition for divorce by mutual consent under S. 13B of the Act to withdraw the consent at any time till a decree of divorce is granted. In other words, the consent once given is revokable.

(3.) During the pendency of the aforemen-tioned proceedings of divorce by mutual consent, another petition for divorce under S. 13(1)(ib) of the Act was preferred by appel-lant on 28/08/1986 praying for dissolu-tion of marriage by a decree of divorce on the ground that the respondent had deserted the petitioner for a continuous period of two years immediately prior to the presentation of the petition. This petition was contested by the respondent. The District Judge, Hamir-pur, through the impugned judgment and decree dated 31/10/1987 dismissed this petition holding that the appellant has failed to prove that there was desertion on the part of respondent for a continuos period of two years prior to the presentation of petition. It is this judgment which is under challenge in this appeal.