G.C. Mital, J. - (1.) On 25th Sept., 1981 Dharam Pal obtained a decree for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act, 1955, against his wife Shrimati Santosh Kumari. Thereafter, Shrimati Santosh Kumari filed a petition under Sec. 25 of the Act for grant of permanent alimony. The husband contested the petition and pleaded that he had always been ready and willing to keep his wife, whereas his wife was not willing to go back with him, that wife had also filed a petition for judicial separation under section 10 of the Act but she confessed the husband's claim in the petition for restitution of conjugal rights on which the husband was granted a decree whereas the wife's petition for judicial separation was dismissed as withdrawn on 6th Oct., 1981. He further pleaded that thereafter he filed an application for execution of the decree for restitution of conjugal rights during which proceedings, the wife categorically stated that she was not willing to live with him as she apprehended danger to her life. Consequently, the execution proceedings were filed. On these basis, it was pleaded that the wife was an erring party and, therefore, she was not entitled to grant of permanent injunction. This matter was put in the following issues : 1.Whether the petitioner is entitled to claim permanent alimony under section 25 of the Hindu Marriage Act, if so, at what rate ? 2.Relief.
(2.) After evidence was led, the trial Court came to the conclusion that the husband not only sought restitution of conjugal rights successfully, he also took out execution, in which wife failed to go back to her husband's house. From the above, it was concluded that since wife was at fault, it was not a fit case for grant of permanent alimony. Consequently her petition was dismissed on 23rd Feb., 1982. This is wife's appeal against the aforesaid order.
(3.) The learned counsel for the wife has argued that there is no bar in granting permanent alimony even when decree under section 9 of the Act for restitution of conjugal rights obtained by the husband remains un-complied with. With this, legal, proposition no fault can be found in view of Division Bench of this Court in Smt. Ram Piari Vs. Piara Lal P.C.S. Divisional Agricultural Officer, Patiala, AIR 1970 (Pb. & Haryana) 341 . However, the matter does not rest here. The wife could show that although she did not comply with the decree for restitution of conjugal rights she could provide some cause to live away from the husband by supporting the same by evidence. In this case she has not raised any plea whatsoever as to why she is willing to live away from her husband. In execution proceedings her stand was that she had danger to her life. In those proceedings, she led no evidence on that aspect of the matter and if on perusal of that evidence it could be concluded that there was really some apprehension to her from the side of the husband of her-in-laws, probably, she would have had a good case but no evidence having been brought on record, the fact remains that as a wife, she wants to live away whereas the dicta of law is that she must go with her husband.;