SHEELA DEVI Vs. GOPI NATH

JUDGEMENT

(1.) THESE two cross appeals by the spouses arise out of the proceedings under the Hindu Marriage Act, hereinafter referred to as the Act. The facts leading to these appeals are: - Sheela Devi, appellant in appeal No. 29 of 1971. presented a petition under section 10 of the Act on August 23, 1964. in the Court of the District Judge, Kashmir, Srinagar, against her husband, Gopi Nath, respondent in the said appeal, seeking a decree for judicial separation on the grounds of desertion and cruelty. In response to the notice issued to him Gopi Nath appeared before the Court and filed objections denying the allegations made by his wife, Sheela Devi, in the aforesaid petition. Consequent upon the setting up of the Court of District Judge at Baramulla as a result of the enforcement of the District Scheme the petition was transferred for disposal to the District Judge. Baramulla, as the parties resided within his jurisdiction. After the statements of the parties had been recorded by the Court, Gopi Nath made himself scarce with the result that an exparte decree was passed against him on December 28, 1965. Against this decree Gopi Nath preferred an appeal before the High Court which proved abortive with the result that the decree for judicial separation passed in favour of Sheela Devi was affirmed. On April 4, 1968, Sheela Devi filed a petition under section 13(1) (viii) of the Act praying that as more than two years had elapsed since the passing of the decree for judicial separation and there had been no resumption of co -habitation during this period a decree for divorce be passed in her favour. The petition was resisted by Gopi Nath on the ground that after the dismissal of his appeal by the High Court there had been a re -settlement between the parties and resumption of co -habitation during the period intervening between the judgment of the High Court and the presentation of the petition by Sheela Devi under section 13 of the Act. On conclusion of the evidence adduced by the parties the learned District Judge came to the conclusion that the husband had failed to prove that there had been resumption of co -habitation between the spouses after the passing of the decree dated December 28, 1965. The learned District Judge, however, refused to grant a decree for divorce in favour of Sheela Devi on the ground that the two years period commencing from the judgment of the High Court dated July 10, 1967, had not elapsed. It is against this decision that the present appeal No. 29 of 1971 is directed, Gopi Nath has also appealed against the finding of the District Judge that the resumption of co -habitation between the spouses had not been established. Both these appeals shall be disposed of by this judgment.

(2.) WE have heard the learned counsel for the parties who have supported the respective stands of their clients.

(3.) TWO crucial points arise for determination in these appeals: firstly whether the two years period contemplated by section 13(1) (viii) of the Act had expired when Sheela Devi presented her aforesaid petition for divorce, secondly whether the finding arrived at by the trial Court regarding non -resumption of cohabitation between the spouses after the decree for judicial separation was passed is justified by the material on the record.