RAMESHWARI Vs. KIRPASHANKER

JUDGEMENT

(1.) THIS appeal is directed against the order of the District Judge, Ganganagar, dated March 7. 1973, whereby the learned Judge allowed the respondent's petition for divorce under Section 13 of the Hindu Marriage Act. 1955 (hereinafter referred to as 'the Act') and dissolved the marriage of the respondent with the appellant by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties for a period of more than two years after the passing of the decree for restitution of conjoigal rights.

(2.) THE respondent was married to the appellant some time in the year 1964 A. D. according to the Hindu rites. The appellant lived with the respondent for about two years and duly discharged her marital obligations towards him. During this period she also gave birth to a son. However, subsequently, she withdrew from the society of the respondent, who filed an application for restitution of conjugal rights under Section 9 of the Act. The application was resisted by the appellant on the ground that the respondent had treated the appellant with such cruelty as to cause reasonable apprehension in her mind that it would be harmful for her to live with him It was pleaded that the respondent was given to heavy drinking and gambling and also used to beat her. The contention of the appellant was. however, overruled and the learned District Judge, Ganganagar by his judgment dated September 30. 1969, decreed restitution of conjugal rights against the appellant. On 18th August. 1972, the respondent filed the present petition under Section 13(1 -A)(ii) of the Act for grant of a decree of divorce on the ground that the appellant failed to comply with the decree for restitution of conjugal rights for a period of more than two years. The petition was opposed by the appellant on the ground that she never refused to resume the marital relations and co -habit wtih the respondent but the respondent himself had treated her with cruelty and had turned her out of his house.

(3.) LEARNED counsel for the appellant has urged that the burden of proof lay upon the husband to prove the fact that during the period of two years commencing from the date of the decree for restitution of conjugal rights, the wife had not cared to comply with it and that this burden had not been satisfactorily discharged by the respondent. He has argued that it was for the respondent to have proved that he made a sincere endeavour to arrange for the return of his wife to his place. It is contended that the respondent refused to take back his wife after the decree for restitution of conjugal rights had been passed and, therefore, he is not entitled to a decree of divorce. In support of his contention he has relied upon AIR 1970 Cal 328. MR 1968 Punj and Har 489. AIR 1968 Bom 332, and AIR 1968 Mys 274.