Nirmala Rani vs Lachaman Dass

J.V. Gupta, J.—This appeal is directed against the decree of the District Judge, Hissar, dated 16th August, 1986, whereby the petition filed by the husband Lachhman Dass for divorce was accepted.

The parties were married on 1st September, 1982. A male child was also born out of this wedlock. The wife withdrew from the society of the husband without any rhyme or reason on or about March, 1983. The husband tried to persuade her to join his company but she was adamant. He filed a petition for restitution of conjugal rights u/s 9 of the Hindu Marriage Act in August, 1983 (Copy Ex. P1) but the same was dismissed as compromised on 25th October, 1983, on the assurance held out by her that she will come back to him. On her refusal to come back to him, however, he filed the divorce petition u/s 13 of the Act which was dismissed as withdrawn upon the parties coming to terms before the Lok Adalat on 25th February, 1986. According to the husband, the wife did not keep her word and never came to reside with him as per the terms of the compromise. So, he was compelled to file the present divorce petition u/s 13 of the Act on 28th April, 1986, on grounds of cruelty and desertion. The petition was contested on the ground that she had gone to the husband house in the wake of the compromise arrived at between the parties in the Lok Adalat but she was pushed out by the husband as he was not ready and willing to keep her with him as he always insisted on her to pay him costs for the judicial separation On the pleadings of the parties, the trial court framed the following issues:

(1) Whether the Respondent has deserted the Petitioner for a period more than 2 years from the date of the presentation of the petition ?

(2) Whether the Respondent has treated the Petitioner with cruelty ?

(3) Relief.

It was found that the wife has been in desertion for the last more than two years from the date of the presentation of the petition and was also guilty of treating the husband with cruelty by denial of her matrimonial obligations towards him. As a result of this finding, a decree by dissolution of marriage by divorce was passed.

Learned Counsel for the Appellant submitted that apart from the fact that there was no evidence of cruelty and desertion on the part of the wife, the petition was liable to be dismissed as the husband had failed to prove that the wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition, as required by Section 13 of the Hindu Marriage Act. According to the learned Counsel the petition u/s 9 for the restitution of conjugal rights was dismissed as compromised on 25th October, 1983, and the petition u/s 13 of the Act was dismissed on 25th February, 1986, and that being so, the present petition having been filed on 16th April, 1986, i.e , within three months of the earlier petition, was not maintainable. He also submitted that the wife was always ready and willing to go with the husband and even now she was prepared and ready to go to and live with him. It is the husband who is not willing to take her back and, in these circumstances, the question of desertion on her part does not arise In support of this contention he referred to Nirmal Gupta v. V.K. Gupta 1979 H.L.R. 37, Gurmel Singh v. Ajit Kaur (1979) 81 P.L.R. 122 and Tirath Singh v. Kulwant Kaur 1979 H.L.R. 228. On the other hand, learned Counsel for the Respondent/husband submitted that by compromising the earlier petitions he never condoned the desertion and cruelty on the part of the wife because she never came to live with him as agreed to between them. Thus, argued the learned Counsel, the desertion as such continued for more than two years before filing the present petition. In support of this contention he referred to Dr. N.G. Dastane Vs. Mrs. S. Dastane, and Girdhari Lal v. Santosh Kumari 1982 H.L.R. 97 where, ''what is condonation'' was considered and it was observed that condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute ''condonation'', there must be, therefore, two things ; forgiveness and restoration."

After hearing the learned Counsel for the parties I find force in the contentions raised on behalf of the Appellant. Admittedly, the petition u/s 9 for restitution of conjugal rights was compromised on 25th October, 1983. Subsequent petition u/s 13 for divorce was also compromised on 25th February, 1986. There is no cogent evidence on record to prove that there was desertion for a continuous period of two years before the presentation of the present petition on 16th April, 1986. The earlier desertion, if any, was condoned by compromising both the petitions. It could not be successfully argued on behalf of the husband that there was no forgiveness on the part of the husband when he compromised the petition The compromise presupposes forgiveness on the part of both the parties. As regards the restoration, the evidence is conflicting and, therefore, it could not be successfully argued that the parties continued as such when they parted last in March, 1983 Under these circumstances, this petition is liable to be dismissed on the short ground that the husband had failed to prove desertion for a continuous period of less than two years immediately preceding the presentation of the petition. Consequently, the appeal succeeds, the decree of the trial court is set aside and the petition for decree u/s 13 is dismissed as premature, with no order as to costs.