DEVI SINGH Vs. SUSHILA DEVI

JUDGEMENT

(1.) This appeal, under Section 28 of the Hindu Marriage Act (No. XXV of 1955) (which will hereinafter for the sake of brevity be referred to as 'the Act') by the husband, who was petitioner before the District Judge, Jodhpur, is directed against the judgment dated August 16, 1978 by which his petition, filed under Section 13 of the Act was dismissed. In this judgment, the husband-appellant and the wife-respondent will be referred to as the petitioner and the respondent respectively.

(2.) Petitioner Devisingh and respondent Sushila Devi were married according to Hindu rites in April, 1961. After marriage, both lived together as husband and wife. Out of this wedlock a son was born to them, who attained the age of 1415 years on Oct. 5, 1977, the date on which the petition was filed. According to the petitioner, the respondent left his house En the year 1964 and started living separately. A long period of 14 years had passed since then. The case of the petitioner Is that the respondent has been living separately with an intention to put an end to the marital relation and she has no intention to come and live with the petitioner whereby to resume the conjugal relation. It appears from the averments made in the petition, that there was lot of litigation between the parties after 1964. The case of the petitioner is that the respondent is guilty of cruelty and has deserted him without just and reasonable excuse. He, therefore, submitted the petition under Section 13 of the Act for dissolution of the marriage by a decree of divorce.

(3.) The respondent contested the petition. She has averred that the petitioner had been cruel to her from the very first night of the marriage, that she was not treated properly by the petitioner, that on being assured by the petitioner of a good behaviour, she purchased a house in Bagar Chowk and the petitioner started living with her. According to the respondent, both (husband and wife) lived in that house for some time but on April 12, 1964, the petitioner left the respondent along with an ailing son and, thereafter, he never returned despite her repeated efforts and requests to resume married life. She has stated that a letter was written to the petitioner on November 19, 1965. In brief, her case was that it was on account of improper and cruel behaviour of the husband that she was compelled to live separately. Thus, she imputed desertion on the part of the petitioner. She also raised an objection that there has been unnecessary and improper delay in filing the petition under Section 13 of the Act and as such it is not maintainable. It was pleaded by her that the petitioner had previously filed separate petitions for restitution of conjugal rights and judicial separation. The petitions for restitution of conjugal rights and judicial separation were dismissed. The dismissal of the petition for judicial separation was maintained by the High Court and, therefore, the present petition under Section 13 of the Act is barred by the principles of res judicata. An objection was also taken that the petition under Section 13 of the Act is not maintainable.