KISHAN GOPAL Vs. SARSWATI

JUDGEMENT

(1.) THIS is an appeal by the husband under Section 28 of the Hindu Marriage Act No. XXV of 55for short, 'the Act' hereafter against the judgment dated April 28, 1978 of the learned District Judge, Bikaner, by which his petition for dissolution of marriage by a decree of divorce under Section 13(1) of the Act was dismissed. For the sake of convenience, the husband appellant and the wife respondent wail hereafter be referred to as 'the husband' and 'the wife' respectively in this judgment.

(2.) THE case of the husband, as disclosed in the petition, is as follows -that the husband was married with the wife about ten years preceding the date of the filling of the petition (petition was filed on 1 -7 -1977) according to the Hindu rites; that a girl was first born out of this wedlock that the husband reliably learnt that the wife was pregnant; that the husband and the wife had not shared common bed for the last 9 1/2 months preceding the date of the presentation of the petition that the wife is net of good character; that she became pregnant by some person other than the husband whose name the husband has not been able to ascertain despite efforts and that person is amongst one of the persons of her 'Pihar'. It was further alleged that a petition under Section 9 of the Act for restitution of conjugal rights was lodged by the husband against the wife which was decided on January 24, 1977; that on that day, the wife agreed to live with the husband and was ready to discharge her marital obligations It was averred that without discharging the marital obligations, she left the matrimonial home on January 25, 1977 and went back to her 'Pihar'. It was also stated that the wife is of immoral character and is not discharging the marital obligations and that the husband is not ready to condone her conduct as she has not changed her 'Chalchalan'. It was further stated in the petition that the bus bar d wants to keep the daughter with him so that she may maintain good character. In para 9 of the petition, it was mentioned that a notice was served on the wife on June 17, 1977 in which it was stated that she may get herself medically examined but she did not furnish any proof until the expiry of the period mentioned in the notice showing that she was not pregnant. Under Section 27 of the Act, restoration of the silver and gold ornaments which were presented by the 'husband's father at the time of the marriage to the wife were also claimed. On these averments, it was prayed that the marriage may be dissolved by a decree of divorce.

(3.) ON August 8, 1977, the learned District Judge framed the following issues: 1. Whether the petitioner (husband) is entitled to get a decree ofdivorce against the non -petitioner (wife)?(Petitioner)2. Whether the petitioner (husband) is entitled to recover the ornaments as stated in para 10 of the petition?(Petitioner)3. Whether the non -petitioner (wife) is of immoral character?(Petitioner)4. Whether the petitioner (husband) had turned out the non -petitioner(wife) before two months from his house after torturing her?(Non -petitioner)5. Relief. In support of his case, the husband examined himself as PW 1 and his mother Smt. Durga as PW 2. In rebuttal, the non -petitioner examined herself as PW 1 During the course of the trial of the petition, on behalf of the husband, the letter Ex. 1 (photostat copy Ex. A1), copy of the notice Ex. 2 acknowledgement Ex. 3 & postal receipt Ex. 4 were produced & proved. List of the ornaments from the Bahi was also produced which was marked Ex. 5 and its copy on the record is Ex. 5A.