Decided on July 05,2005

Shiv Kumar Chandrakar Appellant
Shashikala Alias Devyani Respondents


V.K.SHRIVASTAVA,J. - (1.) This appeal is directed against the judgment and decree dated 26-7-1993 passed by the 3rd Additional District Judge, Raipur in Civil Suit No. 159/1991, by which the petition filed by the appellant for restitution of conjugal rights or in alternate, decree of divorce, has been dismissed.
(2.) Facts material for disposal of this appeal are that appellant and respondent were married on 30-6-1971 according to Hindu Rights, at Raipur and out of their wedlock, a daughter was born. They lived together upto August, 1971, thereafter, without having sufficient cause, respondent left her matrimonial home and is living separately since then, and despite various efforts of the appellant, she is not coming back to join her matrimonial house. Therefore, appellant filed an application for restitution of conjugal rights, or in alternate, for grant of divorce.
(3.) Respondent in reply, pleaded that she was constrained to live separately as a result of cruel behaviour of her husband and in-laws. Appellant has contacted second marriage and is staying with her, with whom he has two children. Earlier to this application, appellant in the year 1974 had filed a petition for judicial separation against the respondent and the same was dismissed by the District Judge and also by the Hon'ble High Court in Appeal No. 3/75, on 16-2-1978. This petition has been filed on the same facts as such, it is not maintainable. Respondent has obtained an order against the appellant for maintenance and only to escape from his liability, the appellant has filed this application.;

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