KAMAL KUMAR Vs. SULOCHANA

JUDGEMENT

(1.) THIS is an appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') against the dismissal of the petition for divorce by the leaned District Judge, Banswara dated October 27, 1977 The appellant (husband) submitted a petition under Sec. 13 (1-A) of the Act before the learned District Judge, Banswara against the respondent (wife) on March 4, 1977 It was stated in the petition that a civil suit No. 2 of 1972 was instituted by the respondent against the appellant for the restitution of conjugal rights. The District Judge, Jhabua (M. P.) granted a decree for restitution of conjugal rights on December 21, 1974. Aggrieved by the decree for restitution of conjugal rights, the appellant preferred an appeal and that appeal was dismissed by the Madhya Pradesh High Court, Jabalpur on June 21, 1977. After the expiration of the period of two years, a petition for granting divorce under sec 13 (1-A) of the Act was submitted before the learned District Judge, Banswara. The respondent (wife) contested this application by filing a reply on July 16, 1977. It was stated that she was ready and willing to remain with the appellant (husband) even before and after December 21, 1974 i. e. when the decree for restitution of conjugal rights was passed. After the submission of the reply by the respondent, the learned District Judge examined the parties under O. X of the Code of Civil Procedure 01 August 6, 1977. In that statement, the appellant stated that he is not ready to keep his wife with him. It was admitted by him that he took no steps for bringing his wife so that she may live with him. The respondent categorically stated that she wanted to remain with her husband and wants to live with him The learned District Judge framed two issues including relief on August 6, 1977 Issue No. 1, when translated into English, runs as under, - "whether the non-petitioner (Smt. Sulochana) has committed default in obeying the decree awarded in case No. 2 of 1972 by the District Judge, Jhabua. If so, what is the effect on these proceedings. " The appellant examined himself in support of his petition for the dissolution of marriage by a decree of divorce. The respondent examined herself and D. W. 2 Nathmal in rebuttal. The learned District Judge held that the appellant is not entitled to get a decree for divorce in view of the bar created by sec. 23 (l) (a) of the Act and dismissed the petition of the appellant on October 27, 1977. Aggrieved by this judgment, the appellant has come up in appeal before this Court.

(2.) I have heard Mr. H. M. Parakh for the appellant and Mr. N. M. Lodha for the respondent and have perused the record.