RAMESHWARI Vs. KRIPA SHANKER

JUDGEMENT

(1.) This special appeal is directed against the judgment of the learned Single Judge dated March 23, 1974, and it arises out of the following circumstances: Mst. Rameshwari, appellant, was married with Kripa Shanker, respondent, in the year 1964. It appears that the couple lived in hermody for about two years and as a result of this wedlock a son was born to them. Thereafter the relations deteriorated and Mst Rameshwari appellant, started living separate from her husband. Kripa Shanker, respondent, filed an application for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act, 1955 (hereinafter called 'the Act'). Those proceedings were resisted by the appellant on the ground that the treatment meted out by her at the hands of her husband was cruel and that the appellant was apprehensive about her safety, if she would start living with her husband. The District Judge, Ganganagar, by his judgment dated September 30, 1969, decreed restitution of conjugal rights against the appellant. Even upto 1972 inspite of the execution taken out by the respondent, the appellant did not start living with her husband and, therefore, the respondent filed the petition under Sec. 13 (1A)(ii) of the Act for the grant of a decree of divorce on a plea that the appellant failed to comply with the decree for restitution of conjugal rights for a period of more than two years. This petition was again resisted by the appellant mainly on the ground that the respondent did not make overtures to the appellant to live with him and therefore, in the circumstances it was not possible for the appellant to go and live with her husband According to the counsel for the appellant it was the duty of the respondent -husband to invite his wife to live with him even after the decree for restitution of conjugal rights was passed in his favour, but it was not done by Mm The respondent, however, averred that inspite of the execution proceedings taken out by him the appellant refused to live with him and therefor, he is entitled to get the decree of divorce against her. The learned District Judge, however passed the decree for divorce in favour of the respondent.

(2.) An appeal was preferred by the lady -appellant to challenge the judgment of the District Judge on the plea advanced by the learned counsel for the appellant that it was the duty of the husband to invite the lady to live with him in his house even after the decree for restitution of conjugal rights was passed and since the husband failed to comply with this duty the decree for divorce could not be passed. This plea did not find favour with the learned Single Judge and he rejected the appeal. It is this way that this special appeal has come before the Division Bench.

(3.) In the stay matter the respondent filed along with his reply a certified copy of the order of the executing court dated February 2, 1970, which reads as follows: